What changed in this filing

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Item 9A. Controls and Procedures

2024-03-21 compared with 2023-03-31 · 247 added, 169 removed, 305 unchanged (58% of the section changed)

33 unchanged sentences

Set forth below are the directors and executive officers of our Company, their respective names and ages, positions with our Company, principal occupations and business experiences during at least the past five years.

Director Since

Chief Executive Officer and Director

David Polinsky

Gary Schubert

Chief Financial Officer

Brady Smallwood

Chief Operating Officer and Director

Mark Schmulen

Jefferson Gramm

Chief Financial Officer

Bill Bennett, Chief Executive Officer and Director

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Bennett received a bachelor’s degree in Business Management with an emphasis in Finance from Brigham Young University and an MBA from the Fuqua School of Business at Duke University.

Sam Klepfish, Chairman

Gary Schubert, Chief Financial Officer

Schubert has been our Chief Financial Officer since January 1, 2024.

Schubert brings to the Company a wealth of public company food industry experience.

Prior to joining the Company as Chief Financial Officer, Mr.

Schubert spent fifteen years at Walmart Stores, Inc.

(“Walmart”), and three years at Tyson Foods, Inc.

(“Tyson”), the second largest protein processer in the world.

From June 2021 through August 2023, Mr.

Schubert was the Senior Director of eCommerce Finance & Transformation Strategy at Walmart.

In this role, he was responsible for generating long-term sustainable growth by increasing customer share of Walmart’s electronic wallet, driving retention, and improving end-to-end omni-channel economics for Walmart’s $75 billion eCommerce business.

From February 2017 through June 2021, Mr.

Schubert served as the financial lead for Walmart’s Neighborhood Market business, the sixth largest grocery chain in the United States, with over $20 billion in annual sales across 700 locations.

In addition, his financial leadership experience at Walmart spanned merchandising, operations, eCommerce, and strategy roles.

During his time at Tyson, Mr.

Schubert had various roles in Financial Planning & Analysis, Corporate Treasury, and Investor Relations.

Schubert received a Bachelor of Science in Business Administration from the University of Arkansas, majoring in financial management, and minoring in accounting.

While attending the University of Arkansas, Mr.

Schubert also managed the growth of a multi-million-dollar trust fund on behalf of the university.

Brady Smallwood, Chief Operating Officer and Director

Smallwood has been our Chief Operating Officer since May 15, 2023, and he has been a Director since May 17, 2023.

Prior to joining the Company, Mr.

Smallwood was most recently Senior Director - eCommerce Strategy, Planning and Operations for The Kroger Company, the largest supermarket operator by revenue in the U.S., from 2020 until 2023.

In this role, he launched a new, profitable rapid grocery delivery business, implemented new management systems, and directed strategy development, pilot execution, and scaling for dozens of innovative initiatives.

Prior thereto, Mr.

Smallwood was Director - Omni Merchandising Planning & Analytics at Walmart from 2019 to 2020, and he served as the head of Ecommerce Insights and Analytics at Younique Products, an Online beauty and personal care products company which is a subsidiary of Coty, Inc., from 2017 to 2019.

Prior to these positions.

Smallwood held various managerial roles at Walmart, Yum!

Brands (Pizza Hut U.S.), and he held analyst roles at American Capital, LLC and at The Federal Home Loan Mortgage Corporation, commonly known as Freddie Mac.

Smallwood received a bachelor’s degree in business management from Brigham Young University and an MBA from The University of Chicago Booth School of Business, where he was an honors graduate, and a Marketing scholarship recipient.

Smallwood was appointed as the director designee of Mr.

Bennett, the CEO and a director of the Company, pursuant to the employment agreement, dated January 30, 2023, between the Company and Mr.

Bennett (the “Employment Agreement”).

Under the Employment Agreement, the Board or its nominating committee must nominate to the Board an individual designated by Mr.

Bennett in good faith, subject to the Board’s fiduciary judgement and applicable legal or regulatory requirements and limitations.

Under the terms of the Employment Agreement, as Mr.

Bennett’s director designee, Mr.

Smallwood may be removed or be asked to resign from his position on the Board in the event that Mr.

Bennett’s employment with the Company is terminated.

Sam Klepfish, Director

Klepfish has been a director since December 1, 2005.

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Klepfish was an asset manager for several investors in small-cap entities.

Joel Gold, Director

Gold is currently a partner in a merchant banking firm, and has served on the board and committees of numerous companies.

Prior to that, he was an investment banker at Buckman, Buckman and Reid located in New Jersey, a position he held since May 2010.

Prior there to, from October 2004, he was head of investment banking of Andrew Garrett, Inc.

From January 2000 until September 2004, he served as Executive Vice President of Investment Banking of Berry Shino Securities, Inc., an investment banking firm also located in New York City.

From January 1999 until December 1999, he was an Executive Vice President of Solid Capital Markets, an investment-banking firm also located in New York City.

From September 1997 to January 1999, he served as a Senior Managing Director of Interbank Capital Group, LLC, an investment banking firm also located in New York City.

From April 1996 to September 1997, Mr.

Gold was an Executive Vice President of LT Lawrence & Co., and from March 1995 to April 1996, a Managing Director of Fechtor Detwiler & Co., Inc., a representative of the underwriters for the Company’s initial public offering.

Gold was a Managing Director of Furman Selz Incorporated from January 1992 until March 1995.

From April 1990 until January 1992, Mr.

Gold was a Managing Director of Bear Stearns and Co., Inc.

(“Bear Stearns”).

For approximately 20 years before he became affiliated with Bear Stearns, he held various positions with Drexel Burnham Lambert, Inc.

Hank Cohn, Director

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Cohn also served as the executive vice president of Galaxy Ventures, LLC a closely-held investment fund concentrating in the areas of bond trading and early stage technology investments, where he acted as portfolio manager for investments.

David Polinsky, Director

Polinsky has been a director since July 24, 2019.

Polinsky has served as Chief Financial Officer of Rafael Holdings, Inc.

RFL) since December 2017.

Polinsky co-founded Rafael Pharmaceuticals and served as its Vice President, General Counsel and Corporate Secretary from 2002 and as President, General Counsel and Secretary from 2016 through March 2018.

He also served on Rafael Pharmaceutical’s Board from 2002 until 2014.

Prior to joining Rafael Pharmaceuticals, from 1996 to 2002, he served as Vice President and General Counsel for a New York-based real estate focused investment and management company, Square Management Corp., leading the investment analysis in and management of residential, office, retail and development properties.

Previously and in partnership with the Honorable Edward I.

Koch, former Mayor of New York City, Mr.

Polinsky founded in 1999 and served as CEO of a company that licensed and developed TheLaw.com as a leading consumer focused legal information site.

Polinsky earned his Juris Doctorate from Fordham University School of Law in 1996 and his Bachelor of Arts from Yeshiva University in 1993.

Polinsky also earned the CFA Institute’s Investment Foundations certificate.

Pappas, Director

Pappas, Charman

Pappas has been a director since January 30, 2020.

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Mark Schmulen has been a Director since January 30, 2020.

Schmulen is a co-founder and has served as CEO of Chirp Systems, Inc., a venture-backed smart access solution for multifamily property owners, since October 2019.

Schmulen is a co-founder of Chirp Systems, Inc., a venture-backed smart access solution for multifamily property owners, and has served as its CEO since October 2019.

Schmulen has also served as the managing director of Jelly Capital, LLC, a private investment fund focused on early stage technology and real estate investments, since May 2015, and as an investment advisor representative for Forum Financial, LP, an independent investment advisor, since November 2016.

Previously, he served as General Manager of Social Media for Constant Contact, Inc.

(formerly NASDAQ:CTCT), a provider of digital marketing solutions, from May 2010 until May 2014.

Prior to that, he was co-founder and served as CEO of Nutshell Mail, Inc., a social media marketing solution, from 2008 until its acquisition by Constant Contact, Inc.

Previously, he served as the General Manager of Social Media for Constant Contact, Inc.

(formerly NASDAQ:

CTCT), a provider of digital marketing solutions, from May 2010 until May 2014.

Prior to this, he was a co-founder and served as the CEO of Nutshell Mail, Inc., a social media marketing solution, from 2008 until it was acquired by Constant Contact, Inc.

Schmulen began his career as an investment banking analyst with JPMorgan Chase Bank.

Currently, he serves on the board of directors for the Shlenker School, since August 2017 and is a Director of the HHF Foundation, benefiting early childhood education, since December 2014.

He has served on the board of directors for the Shlenker School since August 2017 and has been a Director of the HHF Foundation, which benefits early childhood education since December 2014.

Schmulen holds a B.S.

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Jefferson Gramm has been a Director since September 10, 2021.

Gramm is a co-founder, partner and portfolio manager at Bandera Partners LLC, a New York based investment fund founded in 2006.

Gramm is a co-founder, partner and portfolio manager at Bandera Partners LLC (“Bandera”), a New York based investment fund founded in 2006.

Prior to founding Bandera in 2006, he served as Managing Director of Arklow Capital, LLC, a hedge fund focused on distressed and value investments.

Gramm has extensive board experience and currently serves as the Chairman of the Board of Tandy Leather Factory, Inc.

and as a director of Rubicon Technology Inc.

Gramm has extensive board experience and currently serves as the Chairman of the board of directors of Tandy Leather Factory, Inc.

and he is a director of Rubicon Technology Inc.

Gramm previously served on the board of directors of Ambassadors Group Inc., Morgan’s Foods Inc., and Peerless Systems Corp.

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Denver Smith has been a Director since March 13, 2023.

Smith is the Co-Founder and a managing member of Carlson Ridge Capital, a hedge fund manager, which was founded in 2015.

He is also the Co-CIO of the firm and acts as the lead manager for the CRC Founders Fund, LP.

Smith is the Co-Founder and a managing member of Carlson Ridge Capital (“Carlson Ridge”), a hedge fund manager, which was founded in 2015.

He is also the Co-CIO of Carlson Ridge and acts as the lead manager for the CRC Founders Fund, LP.

Additionally, Mr.

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Smith is a CFA Charterholder.

Richard Tang , CFO

Richard Tang has been CFO at IVFH since December 29, 2020.

Tang, has more than 25 years of experience in senior leadership roles, working in media, e-commerce, CPG and food-based sectors, most recently as CFO for Van Leeuwen Ice Cream LLC, a nationwide manufacturer of ultra-premium dairy and vegan ice cream distributed and sold through 2,000 supermarket and independent chain doors nationwide and multi-state brick and mortar locations.

Prior thereto, from 2017 to 2019, Mr.

Tang was CFO at Nutraceutical Wellness, Inc., a global subscription-based CPG e-commerce and business-to-business wellness vitamin and supplements consumer business.

Prior thereto, from 2012-2016, Tang was Senior Vice President, Corporate Development at Fareportal, the third largest Online Travel Agency in North America.

Tang has also held senior financial roles at The Condé Nast Publications, Time Warner, and Walt Disney Corporation.

Tang holds a Master of Business Administration from Boston University Graduate School of Management and a Bachelor of Science from Boston College.

Qualification of Directors

We believe that all of our directors are qualified for their positions and each brings a benefit to the board.

We believe that all of our directors are qualified for their positions, and that each brings a benefit to the board.

Bennett, as an executive officer, is uniquely qualified to bring management’s perspective to the board’s deliberations.

Gold, with his lengthy career working for broker/dealers, bring a “Wall Street” perspective and Mr.

Schmulen, with his private equity experience, and Messrs.

Cohn and Polinsky, with their prior history of being executives and directors of other companies, bring a well-rounded background and wealth of general business experience to our board.

Smallwood, with his experience with The Kroger Company and Walmart, Mr.

Schmulen, with his private equity experience, Mr.

Cohn, with his history of being an executive and director of other companies, and Mr.

Schubert with his financial expertise and experiences at Walmart, bring a well-rounded background and wealth of general business experience to our board.

Pappas brings both his investment and corporate finance background and food industry experience to the board.

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Gramm and Smith bring extensive experience in business strategy and capital markets.

The Board of Directors currently has an Audit Committee, a Compensation Committee, and a Nominating and Corporate Governance Committee.

The members of the Compensation Committee and of the Nominating and Corporate Governance Committee are Messrs.

Gold, Cohn, Pappas and Schmulen and the members of the Audit Committee are Messrs.

Gold, Cohn, Gramm, Polinsky, and Schmulen with Mr.

Cohn designated as the Audit Committee Financial Expert.

All of the members of each committee have been determined by the Board of Directors to be independent.

Family Relationships

There are no family relationships between any of our director nominees or executive officers and any other of our director nominees or executive officers.

Audit Committee

The Audit Committee has been established in accordance with Section 3(a)(58)(A) of the Exchange Act and is currently comprised of Messrs.

Smith (Chairman) Cohn, and Gramm, each of whom the Board of Directors has determined satisfies the applicable SEC independence requirements for audit committee members.

The Board of Directors has also determined that Mr.

Smith is an “audit committee financial expert,” as defined by the applicable rules of the SEC.

The Audit Committee is responsible for, among other things:

reviewing the independence, qualifications, services, fees and performance of our independent registered public accounting firm;

appointing, replacing and discharging our independent registered public accounting firm;

pre-approving the professional services provided by our independent registered public accounting firm;

reviewing the scope of the annual audit and reports and recommendations submitted by our independent registered public accounting firm;

reviewing our financial reporting and accounting policies, including any significant changes, with our management and our independent registered public accounting firm.

Nominating Committee

The Nominating Committee currently consists of Messrs.

Schmulen (Chairman), Klepfish, Smith, and Pappas, each of whom the Board of Directors has determined satisfies the applicable SEC and Nasdaq independence requirements.

The Nominating Committee reviews, evaluates and proposes candidates for election to our Board of Directors, and considers any nominees properly recommended by stockholders.

The Nominating Committee promotes the proper constitution of our Board of Directors in order to meet its fiduciary obligations to our stockholders, and oversees the establishment of, and compliance with, appropriate governance standards.

Compensation Committee

The Compensation Committee currently consists of Messrs.

Cohn (Chairman), Smith, Klepfish, Pappas, and Schmulen, each of whom the Board of Directors has determined satisfies the applicable SEC and Nasdaq independence requirements.

In addition, each member of the Compensation Committee has been determined to be a non-employee director under Rule 16b-3 as promulgated under the Exchange Act.

The Compensation Committee reviews and recommends to the Board of Directors the compensation for our executive officers and our non-employee directors for their services as members of the Board of Directors.

Compensation Committee Interlocks and Insider Participation

None of our executive officers has served as a director or member of a compensation committee (or other board committee performing equivalent functions) of any other entity, one of whose executive officers served as a director or a member of our Compensation Committee.

Involvement in Certain Legal Proceedings

To the best of our knowledge, none of our current directors or executive officer has been convicted in a criminal proceeding, excluding traffic violations or similar misdemeanors, or has been a party to any judicial or administrative proceeding during the past ten years that resulted in a judgment, decree or final order enjoining the person from future violations of, or prohibiting activities subject to, federal or state securities laws, or a finding of any violation of federal or state securities or commodities laws, any laws respecting financial institutions or insurance companies, any law or regulation prohibiting mail or wire fraud in connection with any business entity or been subject to any disciplinary sanctions or orders imposed by a stock, commodities or derivatives exchange or other self-regulatory organization, except for matters that were dismissed without sanction or settlement.

Agreements with Directors

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Smith to our board.

Insider Trading Policy

The Company has adopted an insider trading policy governing the purchase, sale, and/or other dispositions of the Company’s securities by directors, officers and employees.

The policy is designed to promote compliance with insider trading laws, rules and regulations, and any listing standards applicable to the Company.

Code of Ethics

We have adopted a Code of Ethics that applies to each of our employees, including our CEO, our principal financial officer, as well as members of our Board of Directors.

A copy of such Code has been publicly filed with, and is available for free from, the Securities and Exchange Commission.

Section 16(a) Beneficial Ownership Reporting Compliance

During 2022, Messrs.

Klepfish and Wiernasz did not file one Form 4 in connection with the receipt of shares.

We have adopted a Code of Ethics that applies to our directors, officers and employees, including our principal executive officer, principal financial officer, principal accounting officer or controller, or persons performing similar functions.

A copy of the code is available on our website, www.ivfh.com, and it has been publicly filed with, and is available for free from the Securities and Exchange Commission.

The information on or accessed through our website is deemed not to be incorporated in this Annual Report or to be part of this Annual Report.

Delinquent Section 16(a) Reports

Section 16(a) of the Exchange Act requires that our executive officers and directors, and persons who own more than ten percent of our common stock, file reports of ownership and changes in ownership with the SEC.

Executive officers, directors and greater-than-ten percent stockholders are required by SEC regulations to furnish us with all Section 16(a) forms they file.

Based solely on our review of the copies of the forms received by us and written representations from certain reporting persons that they have complied with the relevant filing requirements, we believe that, during the year ended December 31, 2023, all of our executive officers, directors and greater-than-ten percent stockholders complied with all Section 16(a) filing requirements, except that, due to administrative errors, the following forms were filed late:

Samuel Klepfish filed a Form 4 on February 22, 2023 to report a transaction that occurred on February 17, 2023.

James Pappas filed a Form 4 on November 17, 2023 to report a transaction that occurred on November 14, 2023.

Executive Compensation

The following table sets forth information concerning the compensation for services rendered to us for the two years ended December 31, 2022, of our Chief Executive Officer, our principal financial officer and our highest compensated officer whose annual compensation exceeded $100,000 in the fiscal year ended December 31, 2022, if any.

The following table sets forth information concerning the compensation for services rendered to us for the two years ended December 31, 2023, of our Chief Executive Officer and our other named executive officers, determined in accordance with SEC rules applicable to smaller reporting companies, our principal financial officer and our highest compensated officer whose annual compensation exceeded $100,000 in the fiscal year ended December 31, 2023, if any.

We refer to the Chief Executive Officer and these other officers as the named executive officers.

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Incentive Plan

Justin Wiernasz

Director of Strategic Acquisitions (g)

Chief Financial Officer

Principal Accounting Officer

(a) Consists of the portion of restricted stock awards which were recognized as a period cost during the year for services as an executive officer.

(b) Consists of cash payments for health care benefits in the amount of $3,525 and restricted stock awards in the amount of $95,414 recognized as a period cost during the year for services as an executive officer and utilized to pay withholding taxes on behalf of Mr.

(d) Consists of a cash bonus paid during the year for services performed in the previous year.

(e) Consists of option awards which were recognized as a period cost during the year for services as an executive officer.

Klepfish resigned from his position as Chief Executive Officer on February 28, 2023.

Wiernasz resigned from his position as Director of Strategic Acquisitions on March 1, 2023.

Outstanding Equity Awards at Fiscal Year-End as of December 31, 2022

Option Awards

Number of Securities Underlying Unexercised

Number of Securities Underlying Unexercised Options(#) Unexercisable

Equity Incentive Plan Awards:

Number of Securities Underlying Unexercised Unearned Options(#)

Option Exercise Price ($)

Option Expiration Date

Number of Shares or Units of Stock That Have Not Vested

Market Value of Shares or Units of Stock That Have Not Vested ($)

Equity Incentive Plan Awards:

Number of Unearned Shares, Units or Other Rights That Have Not Vested (#)

Equity Incentive Plan Awards:

Market or Payout Value of Unearned Shares, Units or Other Rights That Have Not Vested

(a) Restricted stock awards vest according to the following schedule:

An additional 125,000 restricted stock awards will vest contingent upon the attainment of a stock price of $2.00 per share for 20 consecutive trading days, and an additional 175,000 restricted stock awards will vest contingent upon the attainment of a stock price of $3.00 per share for 20 consecutive trading days.

(b) Amounts are calculated by multiplying the number of shares shown in the table by $ 0.21 per share, which is the closing price of common stock on December 30, 2022 (the last trading day of the 2022 fiscal year).

Director Compensation

Incentive Plan

Justin Wiernasz (b)

David Polinsky

Mark Schmulen

Jefferson Gramm

(a) Represents the amount charged to operations during the year ended December 31, 2022 for 90,634 shares of the Company’s common stock with a fair value of $30,000 granted on January 1, 2021 and vesting over a three-year period, and 64,240 shares of the Company’s common stock with a fair value of $30,000 granted on January 1, 2020 and vesting over a three-year period.

Wiernasz resigned his position as a director of the Company on March 1, 2023.

(c) Represents the amount charged to operations during the year ended December 31, 2021 for one-year options to purchase 50,000 shares of the Company’s common stock at a price of $1.20 per share, vesting over one year.

Robert W Bennett, CEO

Brady L Smallwood, COO

Gary Schubert, CFO

Sam Klepfish, former CEO

Justin Wiernasz, former Director of Strategic Operations

Richard Tang, former CFO

(a) Amount reflects the full grant-date fair value of restricted stock granted during 2023 computed in accordance with ASC Topic 718, rather than the amounts paid to or realized by the named executive officer.

The award is subject to a market performance condition and, as such, the grant date fair value of the award is the full grant date fair value, as adjusted to reflect any reduction that is appropriate for the probability that the market condition might not be met.

(b) Amount reflects the cost of health insurance premiums paid in the amount of $32,491 and $167,300 paid to taxing authorities for withholding taxes on stock issued to Mr.

Bennett during the period.

(c) Amount reflects the fair value of stock appreciation rights granted during 2023 computed in accordance with ASC Topic 718, rather than the amounts paid to or realized by the named executive officer.

(d) Amount reflects the cost of health insurance premiums paid

(e) Amount reflects payments to Mr.

Schubert as a consultant to the Company prior to his hiring.

(f) Amount reflects the period cost of separation charges in the amount of $1,819,199 to be paid to Mr.

Klepfish and health insurance premiums in the amount of $585

(g)Amount reflects the period cost of separation charges in the amount of $126,451 to be paid to Mr.

Weirnasz and health insurance premiums in the amount of $4,558.

(h) Amount consists of the period cost of separation charges in the amount of $128,413 to be paid to Mr.

Tang and health insurance premiums in the amount of $18,419.

Employment Agreements

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On February 3, 2023, we entered into an Executive Employment Agreement with Robert William Bennett (the “RWB Agreement”).

Defined terms used and not defined herein shall have the meanings assigned them in the RWB Agreement.

On February 3, 2023, we entered into an Executive Employment Agreement with Robert William Bennett (the “RWB Agreement”).

The RWB Agreement provides, among other things, for Mr.

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Bennett is also subject to the Company’s clawback policies and certain restrictive covenants including confidentiality, non-compete and non-solicitation.

In addition, Mr.

On November 3, 2023, we entered into an amendment to the RWB Agreement (the “RWB Amendment”).

The RWB Amendment modifies Section 3(c) of the agreement, which provides for certain equity grants, referred to as “Value Achievement Awards,” under which Mr.

Bennett, upon the achievement of certain goals, is able to earn grants of Company Shares, as defined in the RWB Agreement, based on a percentage of the Company’s Shares issued and outstanding as of a given date.

The Company recognizes that the hiring of Mr.

Bennett was protracted, and that the original RWB Agreement calculated the number of Shares to be granted in connection with the Value Achievement Awards on the basis of the number of Shares outstanding as of October 2022 (47,176,550 shares).

This number does not account for additional shares that were issued to a departing executive and to certain other employees of the Company thereafter.

As such, the agreement was modified to ensure that the equity grants contained within the RWB Agreement are based upon that 48,756,694 Shares outstanding as of March 28, 2023.

All other terms of the RWB Agreement remained unchanged.

Pursuant to the RWB Amendment, Mr.

Bennett is eligible for stock grants based upon the market price of the Company’s common stock meeting certain price points at various 60-day volume weighted prices, as described in the chart below:

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The lower of (x) the number of Shares (rounded down to the nearest whole Share) representing 0.50% of the total number of issued and outstanding Shares on the Grant Date of this Value Achievement Award or (y) 243,783

Effective March 29, 2017, we entered into an employment agreement with Mr.

Sam Klepfish, our CEO.

This agreement, which ran through December 31, 2019, maintained the then-current base salary and provided for all bonuses and salary increases to be approved by the compensation committee.

As of January 28, 2019, upon approval by the Company’s compensation committee comprised solely of independent directors, we entered into a new employment agreement with Mr.

Sam Klepfish having an effective date of January 28, 2019 and terminating three years thereafter with up to two two-year extension periods.

The first two year extension period was exercised in 2021.

The agreement provides a base salary in the amount of $300,000 with annual increases of at least $25,000 and annual stock compensation of 50% of the base salary.

The agreement also provides for additional bonuses of up to 25% of base compensation, based on increases in EBITDA (as defined in the agreement) and increases in our stock price as reflected in our market capitalization and other perquisites and benefits as detailed therein.

The agreement also contains change of control, confidentiality, non-compete and non-solicitation provisions.

Klepfish resigned his position as CEO on February 28, 2023.

JUSTIN WIERNASZ

Effective March 29, 2017, we entered into an employment agreement with Mr.

Wiernasz, our Director of Strategic Acquisitions.

This agreement, which ran through December 31, 2019, maintained the current base salary and provided for all bonuses and salary increases to be approved by the compensation committee.

As of January 28, 2019, upon approval by the Company’s compensation committee, we entered into a new employment agreement with Mr.

Justin Wiernasz, having an effective date of January 28, 2019 and terminating three years thereafter with up to two extension periods;

one for two years and one for one year.

The agreement provides a base salary in the amount of $326,000 with annual increases of at least 5% and annual stock compensation of 5% of the base salary.

This agreement was further modified to a base salary of $350,000 in 2019.

The agreement also provides for additional bonuses of up to 35% of base compensation and based upon increases in our stock price as reflected in our market capitalization and other perquisites and benefits as detailed therein.

The agreement also contains change of control, confidentiality, non-compete and non-solicitation provisions.

Wiernasz resigned his position as Director of Strategic Acquisitions on March 1, 2023.

Effective December 29, 2020, we entered into a letter agreement with Mr.

Richard Tang to become our CFO.

The agreement provides a base salary in the amount of $200,000 for 2021 and base compensation for 2022 to target an increase of 20%-25% with a targeted 15-20% bonus structure based on milestones to be determined by the Company’s Board of Directors in its sole discretion.

For 2021, Mr.

Tang will have the opportunity to earn a performance stock bonus of $40,000 and a cash bonus of $25,000 based upon satisfying certain specified milestones and an additional bonus equal to up to 10% of combined base salary and bonus based upon criteria to be determined by the Company’s Board of Directors.

The agreement also provided for a one-time stock option grant in the amount of 100,000 shares (half of which is exercisable $0.60 and half at $1.00), which vests in two years.

Similar to our other employees, Mr.

Tang’s employment is at-will and he is subject to the Company’s rules, regulations and policies, including specifically and without limitation, confidentiality and provisions.

Brady Smallwood

On April 14, 2023, we entered into an employment agreement with Mr.

Brady Smallwood in connection with his appointment to the position of Chief Operating Officer (the “Smallwood Employment Agreement”).

Defined terms used and not defined herein shall have the meanings assigned them in the Smallwood Employment Agreement.

The Smallwood Employment Agreement provides, among other things, for Mr.

Smallwood to become the Company’s Chief Operating Officer;

employment at-will with an initial term of employment from May 15, 2023 through December 31, 2025 with nine months of Base Salary as severance payments if terminated without cause or resignation with Good Reason;

an annual Base Salary of $300,000 with at least 3% annual increases;

a $29,370 signing bonus;

an annual incentive bonus equal to at least $80,000 (prorated for partial years);

reimbursement of legal fees up to $5,000;

a one-time option grant of 1.5 million stock options with half exercisable at a price of $1.50 per share and half exercisable at a price pf $2.00 per share;

and participation in the Company’s benefit plans.

Smallwood is also subject to the Company’s clawback policies and certain restrictive covenants including confidentiality, non-compete and non-solicitation.

In addition, Mr.

Smallwood is eligible for stock grants based upon the market price of the Company’s common stock meeting certain price points at various 60-day volume weighted prices, as described in the chart below:

Number of Shares Granted - Lower of:

Number of Shares Issued

and Outstanding on

Grant Date Multiplied by:

Pursuant to the Smallwood Employment Agreement, the Company agreed to grant to Mr.

Smallwood 1,500,000 stock appreciation rights (the “Smallwood SARs”).

The Smallwood SARs vest upon issuance, and expire on December 31, 2026;

750,000 of the Smallwood SARs are priced at $1.50 per share, and 750,000 are priced at $2.00 per share.

It is the Company’s intention to settle the Smallwood SARs in cash.

Gary Schubert

On December 22, 2023, our board of directors appointed Mr.

Gary Schubert to the position of Chief Financial Officer of the Company, effective January 1, 2024.

Defined terms used and not defined herein shall have the meanings assigned them in the Schubert Employment Agreement.

In connection with his appointment, the Company entered into an employment agreement with Mr.

Schubert on December 29, 2023 (the “Schubert Employment Agreement”).

Defined terms used and not defined herein shall have the meanings assigned them in the Schubert Employment Agreement.

The Schubert Employment Agreement provides, among other things, for Mr.

Schubert to become the Company’s Chief Financial Officer;

at-will employment with an initial term of employment from January 1, 2024 through June 30, 2026 with nine months of Base Salary as severance payments if terminated without cause or resignation with Good Reason;

an annual Base Salary of $280,000 with at least 3% annual increases;

a $30,000 signing bonus;

an annual incentive bonus equal to at least $60,000 (prorated for partial years);

and reimbursement of legal fees up to $5,000.

Schubert is also subject to the Company’s clawback policies and certain restrictive covenants including confidentiality, non-compete and non-solicitation.

In addition, Mr.

Schubert is eligible for stock grants based upon the market price of the Company’s common stock meeting certain price points at various 60-day volume weighted prices, as described in the chart below:

Stock Threshold Target

Number of Shares Granted

The lower of (x) the number of Shares (rounded down to the nearest whole Share) representing 0.40% of the total number of issued and outstanding Shares on the Grant Date of this Value Achievement Award or (y) 131,085

The lower of (x) the number of Shares (rounded down to the nearest whole Share) representing 0.30% of the total number of issued and outstanding Shares on the Grant Date of this Value Achievement Award or (y) 98,313

The lower of (x) the number of Shares (rounded down to the nearest whole Share) representing 0.20% of the total number of issued and outstanding Shares on the Grant Date of this Value Achievement Award or (y) 65,542

The lower of (x) the number of Shares (rounded down to the nearest whole Share) representing 0.15% of the total number of issued and outstanding Shares on the Grant Date of this Value Achievement Award or (y) 49,157

The lower of (x) the number of Shares (rounded down to the nearest whole Share) representing 0.10% of the total number of issued and outstanding Shares on the Grant Date of this Value Achievement Award or (y) 32,771

Compensation Committee Interlocks and Insider Participation

Outstanding Equity Awards at Fiscal Year-End as of December 31, 2023

Option Awards

Number of Securities Underlying Unexercised

Number of Securities Underlying Unexercised Options(#) Unexercisable

Equity Incentive Plan Awards:

Number of Securities Underlying Unexercised Unearned Options(#)

Option Exercise Price ($)

Option Expiration Date

Number of Shares or Units of Stock That Have Not Vested

Market Value of Shares or Units of Stock That Have Not Vested ($)

Equity Incentive Plan Awards:

Number of Unearned Shares, Units or Other Rights That Have Not Vested (#)

Equity Incentive Plan Awards:

Market or Payout Value of Unearned Shares, Units or Other Rights That Have Not Vested

Brady Smallwood

December 28, 2025

(a) Stock awards vest upon the market price of the Company’s common stock meeting certain price points at various 60-day volume weighted prices through December 31, 2025 according to the following schedule:

707,649 shares at $0.80 per share;

471,766 shares at a price of $1.00 per share;

353,824 shares at a price of $1.20 per share;

353,824 shares at a price of $1.40 per share;

235,883 shares at a price of $1.60 per share;

235,883 shares at a price of $1.80 per share;

and 235,883 shares at a price of $2.00 per share.

(b) Stock awards vest upon the market price of the Company’s common stock meeting certain price points at various 60-day volume weighted prices through December 31, 2025 according to the following schedule:

196,627 shares at $0.87 per share;

147,470 shares at a price of $1.16 per share;

98,313 shares at a price of $1.45 per share;

73,735 shares at a price of $1.74 per share;

75,735 shares at a price of $2.03 per share;

49,157 shares at a price of $2.32 per share;

49,157 shares at a price of $2.61 per share.

and 49,157 shares at a price of $2.90 per share.

(d) The stock awards are contingent on the executive (A) remaining employed by the Company through the applicable grant date, (B) continuing to comply with all of the terms and conditions of his employment agreement and the restrictive covenants agreement through the applicable grant date, and (C) making or entering into arrangements satisfactory to the Company, prior to each applicable grant date, to comply with all applicable tax withholding obligations.

(e) 50,000 options are exercisable at $0.60 per share and 50,000 options are exercisable at $1.00 per share.

Amounts are calculated by multiplying the number of shares shown in the table by $ 0.74 per share, which is the closing price of common stock on December 30, 2023 (the last trading day of the 2023 fiscal year).

Director Compensation

The Company’s Directors serve without compensation.

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

10 unchanged sentences

Jefferson Gramm (Director)

Joel Gold (Director)

David Polinsky (Director)

Mark Schmulen (Director)

1 unchanged sentence

Bill Bennett (Officer, Director)

Brady Smallwood (Officer, Director)

Smith (Director)

Richard Tang (Officer)

Gary Schubert

Inlight Wealth Management

12 unchanged sentences

Includes 3,125,000 shares which are held indirectly through SV Asset Management LLC.

Includes options to purchase 450,000 shares of common stock.

Does not include an additional 221,694 earned shares which are accrued but not issued.

Includes information gathered from a Form 4 filed with the Securities and Exchange Commission on August 31, 2022.

2 unchanged sentences

Gramm is Managing Partner, Managing Director and Portfolio Manager of Bandera Partners.

Includes options to purchase 50,000 shares of common stock.

Information gathered from a Form 4 filed with the Securities and Exchange Commission on February 10, 2023.

Includes options to purchase 450,000 shares of common stock.

Also includes 18,400 shares of common stock held by Mr.

Gold’s spouse.

Does not include an additional 221,694 earned shares which are accrued but not issued.

Shares held by PetBox LLC, an entity affiliated with, and controlled by, Mr.

Includes options to purchase 450,000 shares of common stock exercisable at May 1, 2022.

Also, includes 16,250 shares of common stock owned by Mr.

Klepfish's spouse, ownership of which is disclaimed by Mr.

Does not include an additional 861,458 earned shares which are accrued but not issued.

Includes 104,910 shares of common stock owned by Mr.

Bennett's spouse, ownership of which is disclaimed by Mr.

Consists of 674,671 shares owned directly by Mr.

Smith and 3,153,400 shares owned by various funds and for which he provides investment advice.

Does not include the shares described in footnote 10.

Includes options to purchase 100,000 shares of common stock.

Pursuant to a Schedule 13G/A filed on February 15, 2023 with the Securities Exchange Commission, the address of Inlight Wealth Management is 1175 Peachtree St NE Suite 350, Atlanta, GA 30361.

Consists of 703,851 shares owned by Mr.

Smith and 3,253,474 shares owned by various funds or businesses for which he provides investment advice.

Includes all but 89,464 shares described in note (7).

Pursuant to a Schedule 13G filed on January 9, 2024 with the Securities Exchange Commission, the address of Inlight Wealth Management is 1175 Peachtree St NE Suite 350, Atlanta, GA 30361.

Amount consists of 2,208,069 shares with sole voting and dispositive power, and 1,348,357 shares with shared dispositive power.

The issuer retains sole voting power for 1,619,958 shares.

Pursuant to a Schedule 13D/A filed on February 21, 2023 with the Securities and Exchange Commission, for a group of investors which includes Mr.

Pursuant to a Schedule 13D/A filed on March 13, 2024 with the Securities and Exchange Commission, for a group of investors which includes Mr.

Denver Smith (see footnote 6).

Smith disclaims beneficial interest over 89,464 shares owned by certain members of the group for which he has no voting power.

The group uses an address at 52 Carlson Drive, Milford, CT, 06460.

The group uses an address of 350 S Race Street, Denver, CO, 80209.

Consists of 24,650,994 shares of common stock held by officers and directors.

Also includes options to purchase 1,950,000 shares of common stock exercisable at March 3, 2023.

Certain Relationships and Related Transactions, and Director Independence

We are not currently subject to the requirements of any stock exchange or national securities association with respect to having a majority of “independent directors”.

Gold, Cohn, Polinsky, Pappas, Schmulen, Gramm and Smith are “independent” and only Messrs.

Cohn, Smallwood, Pappas, Schmulen, Gramm and Smith are “independent” and only Messrs.

Bennett, by virtue of being an Officer, and Klepfish, by virtue of being a former Officer, are not independent.

4 unchanged sentences

Total engagement fees of Assurance Dimensions, Inc.

covering the years ended December 31, 2022 and 2023 are $210,000.

covering the years ended December 31, 2023 and 2022 were approximately $210,000.

The Company engaged Liggett & Webb P.A.

3 unchanged sentences

The aggregate fees billed in each of the last two fiscal years for assurance and related services by Assurance Dimensions and by LW that are reasonably related to the performance of the audit or review of our consolidated financial statements including our quarterly interim reviews on Form 10-Q and are reported under Audit Fees above.

LW tax fees were $0 and $0 for the years ended December 31, 2022 and 2021, respectively.

Assurance Dimensions tax fees were $0 and $0 for the years ended December 31, 2023 and 2022, respectively.

All Other Fees

4 unchanged sentences

Our board of directors pre-approves all auditing services and all permitted non-auditing services (including the fees and terms thereof) to be performed by our independent registered public accounting firm, except for de minimis non-audit services that are approved by the board of directors prior to the completion of the audit.

EXHIBIT NUMBER

Purchase Agreement by and between the Company and Gulf Coast Aluminum, dated December 12, 2023 (incorporated by reference to the Company’s Form 8-K filed with the Securities and Exchange Commission on February 16, 2024)

Articles of Incorporation (incorporated by reference to exhibit 3.1 of the Company’s annual report on Form 10-KSB for the year ended December 31, 2004 filed with the Securities and Exchange Commission on September 28, 2005)

3 unchanged sentences

Employment Agreement with Sam Klepfish (incorporated by reference to exhibit 10.1 of the Company’s Form 10-Q filed with the Securities and Exchange Commission on November 21, 2012)

Employment Agreement Justin Wiernasz (incorporated by reference to exhibit 10.2 of the Company’s Form 10-Q filed with the Securities and Exchange Commission on November 21, 2012)

Loan Agreement between the registrant and Fifth Third Bank effective February 26, 2013 (incorporated by reference to exhibit 10.1 of the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on March 15, 2013)

3 unchanged sentences

Employment Agreement with Sam Klepfish dated as of March 29, 2017 (incorporated by reference to the Company’s Form 10-K filed with the Securities and Exchange Commission on March 30, 2017)

Employment Agreement with Justin Wiernasz dated as of March 29, 2017 (incorporated by reference to the Company’s Form 10-K filed with the Securities and Exchange Commission on March 30, 2017)

Asset Purchase Agreement dated as of January 22, 2018 by and among Innovative Gourmet, LLC, a subsidiary of the registrant, and igourmet LLC and igourmet NY LLC (incorporated by reference to the Company’s Form 8-K filed with the Securities and Exchange Commission on January 30, 2018)

5 unchanged sentences

Employment Agreement with Sam Klepfish dated as of January 28, 2019 (incorporated by reference to the Company’s Form 8-K filed with the Securities and Exchange Commission on February 1, 2019)

Employment Agreement with Justin Wiernasz dated as of January 28, 2019 (incorporated by reference to the Company’s Form 8-K filed with the Securities and Exchange Commission on February 1, 2019)

Form of Director Agreement dated as of January 28, 2019 (incorporated by reference to the Company’s Form 8-K filed with the Securities and Exchange Commission on February 1, 2019)

11 unchanged sentences

Smith (incorporated by reference to the Company’s Form 8-K filed with the Securities and Exchange Commission on November 29, 2022).

Code of Ethics (incorporated by reference to exhibit 14 of the Company’s Form 10-KSB/A for the year ended December 31, 2006, filed with the Securities and Exchange Commission on July 31, 2008)

Employment Agreement with Robert William Bennett dated as of February 3, 2023 (incorporated by reference to the Company’s Form 8-K filed with the Securities and Exchange Commission on February 7, 2023)

First Amendment to the Employment Agreement with Robert William Bennett dated as of November 3, 2023 (incorporated by reference to the Company’s Form 8-K filed with the Securities and Exchange Commission on November 9, 2023)

Employment Agreement with Brady Smallwood dated as of April 14, 2023 (incorporated by reference to the Company’s Form 8-K filed with the Securities and Exchange Commission on May 17, 2023)

Form of Non-Plan Stock-Appreciation Right Award Grant Notice and Award Agreement with Brady Smallwood dated as of July 7, 2023 (incorporated by reference to the Company’s Form 8-K filed with the Securities and Exchange Commission on July 12, 2023)

Employment Agreement with Gary Schubert dated as of December 29, 2023 (incorporated by reference to the Company’s Form 8-K filed with the Securities and Exchange Commission on January 3, 2024)

Code of Ethical Conduct (incorporated by reference to exhibit 14.1 of the Company’s Form 8-K filed with the Securities and Exchange Commission on July 12, 2023)

Subsidiaries of the Company

24 unchanged sentences

(Principal Executive Officer)

/s/ Richard Tang

/s/ Gary Schubert

Chief Financial Officer

March 21, 2024

Gary Schubert

(Principal Accounting Officer)

1 unchanged sentence

March 21, 2024

/s/ Joel Gold

March 31, 2023

/s/ Jefferson Gramm

2 unchanged sentences

March 21, 2024

/s/ David Polinsky

/s/ Brady Smallwood

March 21, 2024

David Polinsky

Brady Smallwood

/s/ Mark Schmulen

6 unchanged sentences

Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.

What changed 10-K

Item 9A. Controls and Procedures