10KSB/A 1 form10ksba2.txt AMENDMENT NO. 2 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Form 10-KSB/A Amendment No. 2 [X] ANNUAL REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934. For the fiscal year ended December 29, 2007 [ ] TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934. Commission File Number: 1-9009 TOFUTTI BRANDS INC. (Name of small business issuer in its charter) Delaware 13-3094658 (State or other jurisdiction (I.R.S. Employer Identification No.) of incorporation or organization) 50 Jackson Drive, Cranford, New Jersey 07016 (Address of principal executive offices) (Zip Code) (908) 272-2400 (Issuer's telephone number) Securities registered under Section 12(b) of the Act: Title of each class Name of each exchange on which registered ------------------- ----------------------------------------- Common Stock, par value $.01 per share American Stock Exchange Securities registered under Section 12(g) of the Act: None Check whether the issuer (1) filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act during the past 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes [X] No [ ] Check if there is no disclosure of delinquent filers in response to Item 405 of Regulation S-B contained in this form, and no disclosure will be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-KSB or any amendment to this Form 10-KSB. [X] Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes [ ] No [X] Issuer's revenues for its most recent fiscal year: $19,150,000. The aggregate market value of voting stock held by non-affiliates computed by reference to the closing sale price of such stock, as reported by the American Stock Exchange, on March 31, 2008 was $7,009,000. As of March 31, 2008, the issuer had 5,593,867 shares of Common Stock, par value $.01, outstanding. Transitional Small Business Disclosure Format Yes [ ] No [X] EXPLANATORY NOTE This Amendment No. 2 on Form 10-KSB/A is being filed by Tofutti Brands Inc. to amend the Company's Annual Report on Form 10-KSB for the year ended December 29, 2007 that was originally filed with the Securities and Exchange Commission on April 14, 2008. This Amendment No. 2 on Form 10-KSB/A amends Item 8A of Part II of the Form 10-KSB and revises the disclosure under the caption "Changes in Internal Control over Financial Reporting." No attempt has been made in this Form 10-KSB/A to modify or update other disclosures as presented in the 10-KSB. Except with respect to the above revision, this Amendment does not modify or update any other disclosures set forth in the original filing. TABLE OF CONTENTS PART II.......................................................................4 Item 8A. Controls and Procedures................................4 Item 13. Exhibits...............................................6 SIGNATURES....................................................................7 3 PART II Item 8A. Controls and Procedures. Evaluation of Disclosure Controls and Procedures Evaluation of Disclosure Controls and Procedures. As of December 29, 2007, our company's chief executive officer and chief financial officer conducted an evaluation regarding the effectiveness of our company's disclosure controls and procedures (as defined in Rules 13a-15(e) or 15d-15(e) under the Exchange Act. Based upon the evaluation of these controls and procedures, our chief executive officer and chief financial officer concluded that our disclosure controls and procedures were not effective as of the end of the fiscal year 2007. Disclosure Controls and Internal Controls. As provided in Rule 13a-14 of the General Rules and Regulations under the Securities and Exchange Act of 1934, as amended, Disclosure Controls are defined as meaning controls and procedures that are designed with the objective of insuring that information required to be disclosed in our reports filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), is recorded, processed, designed and reported within the time periods specified by the SEC's rules and forms. Disclosure Controls include, within the definition under the Exchange Act, and without limitation, controls and procedures to insure that information required to be disclosed by us in our reports is accumulated and communicated to our management, including our chief executive officer and principal financial officer, as appropriate to allow timely decisions regarding disclosure. Internal Controls are procedures which are designed with the objective of providing reasonable assurance that (1) our transactions are properly authorized; (2) our assets are safeguarded against unauthorized or improper use; and (3) our transactions are properly recorded and reported, all to permit the preparation of our financial statements inconformity with generally accepted accounting principles. Management's Annual Report on Internal Control Over Financial Reporting Our management is responsible for establishing and maintaining adequate internal control over financial reporting. Internal control over financial reporting is a process designed by, or under the supervision of the Chief Executive Officer and Chief Financial Officer and effected by our board of directors, management and other personnel, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate. Management's evaluation of internal control over financial reporting includes using the COSO framework, an integrated framework for the evaluation of internal controls issued by the Committee of Sponsoring Organizations of the Treadway Commission, to identify the risks and control objectives related to the evaluation of our control environment. Based on their evaluation under the frameworks described above, our chief executive officer and chief financial officer have concluded that our internal control over financial reporting was ineffective as of December 29, 2007 because of the following material weaknesses in internal controls over financial reporting: 4 o a lack of sufficient resources and an insufficient level of monitoring and oversight, which may restrict our ability to gather, analyze and report information relative to the financial statement and income tax assertions in a timely manner. o The limited size of the accounting department makes it impracticable to achieve an optimum separation of duties. Remediation Plan It is our intention to increase the staffing level of the accounting department as demands on our accounting staff increase. Changes in Internal Control over Financial Reporting No change in our internal control over financial reporting occurred during the quarter ended December 29, 2007, that materially affected, or is reasonably likely to materially affect, our internal control over financial reporting. This annual report does not include an attestation report of our registered public accounting firm regarding internal control over financial reporting. Management's report was not subject to attestation by our registered public accounting firm pursuant to the rules of the Securities and Exchange Commission that permit us to provide only management's report on this annual report. 5 Item 13. Exhibits. 3.1 Certificate of Incorporation, as amended through February 1986.(1) 3.1.1 March 1986 Amendment to Certificate of Incorporation.(2) 3.1.2 June 1993 Amendment to Certificate of Incorporation.(3) 3.2 By-laws.(1) 4.1 Copy of the Registrant's Amended 1993 Stock Option Plan.(4) 4.2 Tofutti Brands Inc. 2004 Non-Employee Directors' Stock Option Plan.(5) 10.1 Form of Loan Agreement between the Registrant and Wachovia Bank, N. A.(6) 10.2 Form of Promissory Note between the Registrant and Wachovia Bank, N. A.(6) 10.3 Form of Security Agreement between the Registrant and Wachovia Bank, N. A.(6) 23.1 Consent of Amper, Politziner & Mattia, P. C.(7) 31.1 Certification by Chief Executive Officer pursuant to Rule 13a-14(a) and Rule 15d-14(a) of the Securities Exchange Act, as amended. 31.2 Certification by Chief Financial Officer pursuant to Rule 13a-14(a) and Rule 15d-14(a) of the Securities Exchange Act, as amended. 32.1 Certification by Chief Executive Officer Pursuant to 18 U.S.C. Section 1350, As Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.(7) 32.2 Certification by Chief Financial Officer Pursuant to 18 U.S.C. Section 1350, As Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.(7) -------------------- (1) Filed as an exhibit to the Registrant's Form 10-K for the fiscal year ended July 31, 1985 and hereby incorporated by reference thereto. (2) Filed as an exhibit to the Registrant's Form 10-K for the fiscal year ended August 2, 1986 and hereby incorporated by reference thereto. (3) Filed as an exhibit to the Registrant's Form 10-KSB for the fiscal year ended January 1, 2005 and hereby incorporated by reference thereto. (4) Filed as an exhibit to the Registrant's Form S-8 (Registration No. 333-79567) filed May 28, 1999 and hereby incorporated by reference thereto. (5) Filed as Appendix B to the Registrant's Schedule 14A filed May 10, 2004 and hereby incorporated by reference thereto. (6) Filed as an exhibit to the Registrant's Form 8-K bearing a cover date of April 13, 2006 and hereby incorporated by reference thereto. (7) Filed as an exhibit to the Registrant's Form 10-KSB for the fiscal year ended December 29, 2007 and hereby incorporated by reference thereto. Schedule II - page S-1, immediately following the signature page. 6 SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this Report to be signed on its behalf by the undersigned, thereunto duly authorized on November 14, 2008. TOFUTTI BRANDS INC. (Registrant) /s/David Mintz -------------- David Mintz Chairman of the Board and Chief Executive Officer In accordance with the Securities Exchange Act of 1934, this Report has been signed below on November 14, 2008, by the following persons on behalf of the Registrant and in the capacities indicated. /s/David Mintz -------------- David Mintz Chairman of the Board and Chief Executive Officer /s/Steven Kass -------------- Steven Kass Secretary, Treasurer and Chief Financial and Accounting Officer /s/Neal S. Axelrod ------------------ Neal S. Axelrod Director /s/Joseph Fischer ----------------- Joseph Fischer Director ---------------------- Aron Forem Director /s/Philip Gotthelf ------------------ Philip Gotthelf Director ---------------------- Reuben Rapoport Director /s/Franklyn Snitow ------------------ Franklyn Snitow Director 7 EXHIBIT INDEX Exhibit ------- 3.1 Certificate of Incorporation, as amended through February 1986.(1) 3.1.1 March 1986 Amendment to Certificate of Incorporation.(2) 3.1.2 June 1993 Amendment to Certificate of Incorporation.(3) 3.2 By-laws.(1) 4.1 Copy of the Registrant's Amended 1993 Stock Option Plan.(4) 4.2 Tofutti Brands Inc. 2004 Non-Employee Directors' Stock Option Plan.(5) 10.1 Form of Loan Agreement between the Registrant and Wachovia Bank, N. A.(6) 10.2 Form of Promissory Note between the Registrant and Wachovia Bank, N. A.(6) 10.3 Form of Security Agreement between the Registrant and Wachovia Bank, N. A.(6) 23.1 Consent of Amper, Politziner & Mattia, P. C.(7) 31.1 Certification by Chief Executive Officer pursuant to Rule 13a-14(a) and Rule 15d-14(a) of the Securities Exchange Act, as amended. 31.2 Certification by Chief Financial Officer pursuant to Rule 13a-14(a) and Rule 15d-14(a) of the Securities Exchange Act, as amended. 32.1 Certification by Chief Executive Officer Pursuant to 18 U.S.C. Section 1350, As Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.(7) 32.2 Certification by Chief Financial Officer Pursuant to 18 U.S.C. Section 1350, As Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.(7) -------------------- (1) Filed as an exhibit to the Registrant's Form 10-K for the fiscal year ended July 31, 1985 and hereby incorporated by reference thereto. (2) Filed as an exhibit to the Registrant's Form 10-K for the fiscal year ended August 2, 1986 and hereby incorporated by reference thereto. (3) Filed as an exhibit to the Registrant's Form 10-KSB for the fiscal year ended January 1, 2005 and hereby incorporated by reference thereto. (4) Filed as an exhibit to the Registrant's Form S-8 (Registration No. 333-79567) filed May 28, 1999 and hereby incorporated by reference thereto. (5) Filed as Appendix B to the Registrant's Schedule 14A filed May 10, 2004 and hereby incorporated by reference thereto. (6) Filed as an exhibit to the Registrant's Form 8-K bearing a cover date of April 13, 2006 and hereby incorporated by reference thereto. (7) Filed as an exhibit to the Registrant's Form 10-KSB for the fiscal year ended December 29, 2007 and hereby incorporated by reference thereto.