S-1 1 ny20004856x1_s1.htm FORM S-1

As filed with the Securities and Exchange Commission on July 28, 2022

Registration No. 333-

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

Form S-1

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

Kaspien Holdings Inc.

(Exact name of registrant as specified in its charter)

New York			454110			14-1541629
(State or other jurisdiction of incorporation or organization)			(Primary Standard Industrial Classification Code Number)			(I.R.S. Employer Identification Number)

2818 N. Sullivan Rd. Ste 130

Spokane Valley, WA 99216

Telephone: (855) 300-2710

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

Brock Kowalchuk

Chief Executive Officer

Kaspien Holdings Inc.

2818 N. Sullivan Rd. Ste 130

Spokane Valley, WA 99216

Telephone: (855) 300-2710

(Name, address, including zip code, and telephone number, including area code, of agent for service)

Please send a copy of all communications to:

Kimberly C. Petillo-Décossard

Ross Sturman

Cahill Gordon & Reindel LLP

32 Old Slip

New York, New York 10005

Telephone: (212) 701-3000

Approximate date of commencement of proposed sale to the public: From time to time after this registration statement becomes effective.

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933 check the following box: ☒

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐

If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer ☐			Accelerated filer ☐
Non-accelerated filer ☒			Smaller reporting company ☒
			Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided to Section 7(a)(2)(B) of the Securities Act ☐

The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Commission acting pursuant to said section 8(a), may determine.

			Page
PROSPECTUS SUMMARY			1
THE OFFERING			4
RISK FACTORS			5
USE OF PROCEEDS			13
SELLING SHAREHOLDERS			14
MARKET PRICE AND DIVIDENDS ON COMMON EQUITY AND RELATED STOCKHOLDER MATTERS			15
FORWARD-LOOKING STATEMENTS			16
PLAN OF DISTRIBUTION			18
DESCRIPTION OF SECURITIES TO BE REGISTERED			20
LEGAL MATTERS			21
EXPERTS			21
WHERE YOU CAN FIND MORE INFORMATION			21

Name of Selling Shareholder	Number of shares of Common Stock Owned Prior to Offering	Maximum Number of shares of Common Stock to be Sold Pursuant to this Prospectus	Number of shares of Common Stock Owned After Offering
Empery Tax Efficient III, LP⁽¹⁾	1,157,077	1,157,077	0
Empery Tax Efficient, LP⁽²⁾	738,542	738,542	0
Empery Asset Master, LTD⁽³⁾	2,379,723	2,379,723	0

SEC registration fee			$1,269.15
Legal fees and expenses			$*
Accounting fees and expenses			$*
Printing and miscellaneous expenses			$*
Total			$*

Exhibit Number			Exhibit Description
3.1			Restated Certificate of Incorporation (incorporated herein by reference to Exhibit 3.1 to the Company’s Annual Report on Form 10-K for the year ended January 29, 1994. Commission File No. 0-14818).

3.2			Certificate of Amendment to the Certificate of Incorporation (incorporated herein by reference to Exhibit 3.1 to the Company’s Quarterly Report on Form 10-Q for the fiscal quarter ended October 29, 1994. Commission File No. 0-14818).

3.3			Certificate of Amendment to the Certificate of Incorporation (incorporated herein by reference to Exhibit 3.4 to the Company’s Annual Report on Form 10-K for the year ended January 31, 1998. Commission File No. 0-14818).

3.4			Certificate of Amendment to Certificate of Incorporation dated September 3, 2020 (incorporated by reference to Current Report on Form 8-K filed September 3, 2020).

3.5			Form of Certificate of Amendment to the Certificate of Incorporation (incorporated herein by reference to Exhibit 3.5 to the Company’s Registration Statement on Form S-4, No. 333-75231).

3.6			Form of Certificate of Amendment to the Certificate of Incorporation (incorporated herein by reference to Exhibit 3.6 to the Company’s Registration Statement on Form S-4, No. 333-75231).

3.7			Certificate of Amendment to the Certificate of Incorporation (incorporated herein by reference to Exhibit 4.2 to the Company’s Current Report on Form 8-K filed August 15, 2000. Commission File No. 0-14818).

3.8			Certificate of Amendment to the Certificate of Incorporation (incorporated herein by reference to Exhibit 2 to the Company’s Current Report on Form 8-A filed August 15, 2000. Commission File No. 0-14818).

3.9			Certificate of Amendment to the Certificate of Incorporation (incorporated herein by reference to Exhibit 3.1 to the Company’s Form 8-K filed July 16, 2019. Commission File No. 0-14818).

3.10			Certificate of Amendment to the Certificate of Incorporation (incorporated herein by reference to Exhibit 3.1 to the Company’s Form 8-K filed March 8, 2022. Commission File No. 0-14818).

3.11			Amended By-Laws (incorporated herein by reference to Exhibit 3.4 to the Company’s Annual Report on Form 10-K for the year ended January 29, 2000. Commission File No. 0-14818).

3.12			Amendment No. 1 to By-Laws (incorporated herein by reference to Exhibit 3.1 to the Company’s Form 8-K filed March 31, 2020. Commission File No. 0-14818).

3.13			Amendment No. 2 to By-laws, dated September 3, 2020 (incorporated by reference to Current Report on Form 8-K filed September 3, 2020).

3.14			Amendment No. 3 to By-laws, dated March 8, 2022 (incorporated by reference to Current Report on Form 8-K filed March 8, 2022).

Exhibit Number			Exhibit Description
5.1*			Opinion of Cahill Gordon & Reindel LLP

10.1			Engagement Agreement dated July 11, 2022 (incorporated herein by reference to Exhibit 10.1 to the Company’s Form 8-K filed July 14, 2022. Commission File No. 0-14818)

10.2			Securities Purchase Agreement (PIPE), dated July 12, 2022, by and among the Company and the purchasers party thereto (incorporated herein by reference to Exhibit 10.2 to the Company’s Form 8-K filed July 14, 2022. Commission File No. 0-14818)

10.3			Form of Investor Warrant (PIPE) (incorporated herein by reference to Exhibit 10.4 to the Company’s Form 8-K filed July 14, 2022. Commission File No. 0-14818)

10.4			Form of Pre-Funded Warrant (PIPE) (incorporated herein by reference to Exhibit 10.5 to the Company’s Form 8-K filed July 14, 2022. Commission File No. 0-14818)

10.5			Registration Rights Agreement, dated July 12, 2022, by and among the Company and the purchasers party thereto (incorporated herein by reference to Exhibit 10.7 to the Company’s Form 8-K filed July 14, 2022. Commission File No. 0-14818)

10.6			Securities Purchase Agreement (Registered Offering), dated July 12, 2022, by and among the Company and the purchasers party thereto (incorporated herein by reference to Exhibit 10.3 to the Company’s Form 8-K filed July 14, 2022. Commission File No. 0-14818)

10.7			Form of Pre-Funded Warrant (Registered Offering) (incorporated herein by reference to Exhibit 10.6 to the Company’s Form 8-K filed July 14, 2022. Commission File No. 0-14818)

10.8			Form of Lockup Agreement (incorporated herein by reference to Exhibit 10.8 to the Company’s Form 8-K filed July 14, 2022. Commission File No. 0-14818)

21			List of Subsidiaries (incorporated herein by reference to Exhibit 21 to the Company’s Annual Report on Form 10-K for the year ended January 29, 2022. Commission File No. 0-14818)

23.1*			Consent of Cahill Gordon & Reindel LLP (included in Exhibit 5.1)

23.2*			Consent of Fruci & Associates II, PLLC

107*			Calculation of Registration Fees

Signature	Title	Date
/s/ Brock Kowalchuk Brock Kowalchuk	Interim Chief Executive Officer (Principal Executive Officer)	July 28, 2022
/s/ Edwin Sapienza Edwin Sapienza	Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)	July 28, 2022
/s/ Jonathan Marcus Jonathan Marcus	Director	July 28, 2022
/s/ Michael Reichert Michael Reichert	Director	July 28, 2022
/s/ Tom Simpson Tom Simpson	Director	July 28, 2022

KASPIEN HOLDINGS INC.

/s/ Brock Kowalchuk

Brock Kowalchuk

Interim Chief Executive Officer

SEC Form S-1 filed by Kaspien Holdings Inc.