WTV WisdomTree US Value Fund

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UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

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Form 10-K

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Commission file number 001-37495

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iMedia Brands, Inc.

(Exact name of registrant as specified in its charter)

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6740 Shady Oak Road, Eden Prairie, MN 55344-3433

(Address of principal executive offices, including Zip Code)

952-943-6000

(Registrant’s telephone number, including area code)

Securities registered pursuant to Section 12(g) of the Act: None

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☐     No ☑

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Exchange Act. Yes ☐    No ☑ 

Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 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 ☑     No ☐

Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes ☑     No ☐

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.

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 pursuant to Section 13(a) of the Exchange Act. ☐

Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☑

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐     No ☑

As of April 21, 2022, 21,730,523 shares of the registrant’s common stock were outstanding. The aggregate market value of the common stock held by non-affiliates of the registrant on July 31, 2021, the last business day of the registrant’s most recently completed second quarter, based upon the closing sale price for the registrant’s common stock as reported by The Nasdaq Stock Market, LLC on July 31, 2021 was approximately $117,966,034. For purposes of determining such aggregate market value, all officers and directors of the registrant are considered to be affiliates of the registrant, as well as shareholders deemed to be affiliates under Rule 12b-2 of the Exchange Act either by holding 10% or more of the outstanding common stock as reported in reports filed with the Commission or by having certain contractual relationships with the registrant related to control. This number is provided only for the purpose of this annual report on Form 10-K and does not represent an admission by either the registrant or any such person as to the status of such person.

DOCUMENTS INCORPORATED BY REFERENCE

Portions of the registrant’s definitive proxy statement to be filed with the Securities and Exchange Commission pursuant to Regulation 14A not later than 120 days after the close of its fiscal year ended January 29, 2022 are incorporated by reference in Part III of this annual report on Form 10-K.

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iMEDIA BRANDS, INC.

ANNUAL REPORT ON FORM 10-K

For the Fiscal Year Ended

January 29, 2022

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CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS

This annual report on Form 10-K and other materials we file with the Securities and Exchange Commission (the “SEC”) (as well as information included in oral statements or other written statements made or to be made by us) contain certain “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. Any statements contained herein that are not statements of historical fact, including statements regarding guidance, industry prospects or future results of operations or financial position are forward-looking. We often use words such as “anticipates,” “believes,” “estimates,” “expects,” “intends,” “predicts,” “hopes,” “should,” “plans,” “will” and similar expressions to identify forward-looking statements. These statements are based on management’s current expectations and accordingly are subject to uncertainty and changes in circumstances. Actual results may vary materially from the expectations contained herein due to various important factors, many of which are, and will continue to be, amplified by the COVID-19 pandemic, including (but not limited to): the impact of the COVID-19 pandemic on our sales, operations and supply chain, variability in consumer preferences, shopping behaviors, spending and debt levels; the general economic and credit environment; interest rates; seasonal variations in consumer purchasing activities; the ability to achieve the most effective product category mixes to maximize sales and margin objectives; competitive pressures on sales and sales promotions; pricing and gross sales margins; the level of cable and satellite distribution for our programming and the associated fees or estimated cost savings from contract renegotiations; our ability to establish and maintain acceptable commercial terms with third-party vendors and other third parties with whom we have contractual relationships, and to successfully manage key vendor and shipping relationships and develop key partnerships and proprietary and exclusive brands; our ability to manage our operating expenses successfully and our working capital levels; our ability to remain compliant with our credit facility covenants; customer acceptance of our branding strategy and our repositioning as a video commerce company; our ability to respond to changes in consumer shopping patterns and preferences, and changes in technology and consumer viewing patterns; changes to our management and information systems infrastructure; challenges to our data and information security; changes in governmental or regulatory requirements, including without limitation, regulations of the Federal Communications Commission (“FCC”) and Federal Trade Commission, and adverse outcomes from regulatory proceedings; litigation or governmental proceedings affecting our operations; significant events (including disasters, weather events or events attracting significant television coverage) that either cause an interruption of television coverage or that divert viewership from our programming; disruptions in our distribution of our network broadcast to our customers; our ability to protect our intellectual property rights; our ability to obtain and retain key executives and employees; our ability to attract new customers and retain existing customers; changes in shipping costs; expenses relating to the actions of activist or hostile shareholders; our ability to offer new or innovative products and customer acceptance of the same; changes in customer viewing habits of television programming; and the risks identified under Item 1A (Risk Factors) in this annual report on Form 10-K. You are cautioned not to place undue reliance on forward-looking statements, which speak only as of the date of this filing. We are under no obligation (and expressly disclaim any such obligation) to update or alter our forward-looking statements whether as a result of new information, future events or otherwise.

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Each entertainment network offers engaging, interactive video programming distributed primarily in linear television through cable and satellite distribution agreements, agreements with telecommunication companies and arrangements with over-the-air broadcast television stations. This interactive programming is also streamed live online on the respective network’s digital commerce platforms that sell products which appear on our television networks as well as offer an extended assortment of online-only merchandise. These networks’ interactive video is also available on leading social platforms over-the-top (“OTT”) platforms and ConnectedTV platforms (“CTV”) such as Roku, AppleTV, and Samsung connected televisions, and mobile devices, including smartphones and tablets.

Consumer Brands Segment – Our consumer brands segment is comprised of Christopher & Banks (“C&B”), J.W. Hulme Company (“JW”), Cooking with Shaquille O’Neal (“Shaq”), OurGalleria.com and TheCloseout.com, which are primarily ecommerce within the United States.  

Media Commerce Services Segment – Our media commerce services segment is comprised of iMedia Digital Services (“iMDS”), Float Left (“FL”) and i3PL, which service homes throughout the United States and Canada.  

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Growth Strategy

Our growth strategy is driven by the continued growth of our entertainment brands and consumer brands that are designed to increasingly create powerful national promotional platforms and first-party shopping enthusiast data that will enable us to build truly differentiated and scaled media commerce services offerings that exceed customers’ expectations and provide advertisers compelling conversion and reach opportunities for their products and services. Each of our businesses target the same customer demographic, which is women and men who are at least 40 years old, and is the basis for why the three operating segments can cross promote and share data to improve our customers experiences.

1-2-3.tv Group Acquisition

As discussed above, on November 5, 2021, we acquired all of the issued and outstanding equity interests of 1-2-3.tv Invest GmbH and 1-2-3.tv Holding GmbH (collectively with their direct and indirect subsidiaries, the “1-2-3.tv Group”) from Emotion Invest GmbH & Co. KG, BE Beteiligungen Fonds GmbH & Co. geschlossene Investmentkommanditgesellschaft and Iris Capital Fund II (collectively, the “Sellers”) pursuant to a Sale and Purchase Agreement, dated September 22, 2021, for an aggregate purchase price of EUR 89,680 ($103,621 based on the November 5, 2021 exchange rate) (the “Enterprise Value”). We also paid to the Sellers EUR 1,832 ($2,117 based on the November 5, 2021 exchange rate) for the 1-2-3.tv Group’s cash on-hand as of July 31, 2021 and EUR 966 ($1,116 based on the November 5, 2021 exchange rate) for the 1-2-3.tv Group’s excess working capital above the 1-2-3.tv Group’s trailing twelve-month average as of July 31, 2021. The Enterprise Value consideration consisted of the payment to the Sellers of EUR 68,200 in cash at the closing of the acquisition ($78,802 based on the November 5, 2021 exchange rate) and us entering into a seller note agreement in the principal amount of EUR 18,000 ($20,800 based on the November 5, 2021 exchange rate) (the “seller notes”) and fair value of EUR 18,800 ($21,723 based on the November 5, 2021 exchange rate). The seller notes are payable in two installments of EUR 9,000 ($10,400 based on the November 5, 2021 exchange rate) due on the first and second anniversaries of the issuance date. The seller notes bear interest at a rate equal to 8.50% per annum, payable semi-annually commencing on the six-month anniversary of the closing date.

Competition

Our business segments each compete in distinct subsets of the entertainment, interactive media, digital advertising and ecommerce ecosystems, and all of these subsets are highly competitive.

The brands in our entertainment segment are in direct competition with numerous cable and broadcast networks for viewership, and in direct competition with online and brick and mortar retailers for merchandise sales.  Many of these competitors are larger and better financed. For example, ShopHQ’s direct competitors within the television shopping industry include QVC, Inc. and HSN, Inc., which are owned by Qurate Retail Inc.  Both QVC, Inc. and HSN, Inc. are substantially larger than we are in terms of annual revenues and customers, and the programming of each is carried more broadly to U.S. households, including high-definition bands and multi-channel carriage, than our programming. However, we believe our programming strategies focused on demonstrating high quality wearables products, our merchandising

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strategies focused on offering exclusive, hard-to-find products and our continued growth of our own consumer brands enable us to compete at scale.  

The brands in our consumer brands segment are in direct competition with numerous ecommerce, omnichannel and/or brick and mortar retailers’ who are often larger and better financed. For example, C&B is a direct competitor with leading omnichannel women’s apparel brands like Talbots and Chicos. However, we believe C&B’s 65-year history of producing affordable apparel with exclusive patterns and full sizes coupled with our new ShopHQ programming that is driving national promotional awareness, enables us to compete at scale.

The brands in our media commerce services segment are in direct competition with numerous digital entertainment and advertising platforms and services and many of these competitors are larger and better financed. For example, iMDS builds digital advertising and online services that use proprietary technology and/or processes to improve advertising conversion and customer experience. This means we compete with companies like Shopify, News Corp, Amazon and Roku. However, we believe our enterprise growth strategy to use our owned entertainment brands’ and consumer brands’ first-party shopping enthusiast data to differentiate iMDS’s advertising products will enable iMDS to grow revenue share in the digital advertising information layer at a time when the digital advertising landscape will soon be eliminating the use of third-party cookies.

Employees & Locations

Our top human capital management objectives are to attract, retain and develop the highest quality talent. To achieve these objectives, our human resources programs are designed to prepare our talent for critical roles and leadership positions for the future; reward and support employees through competitive pay and benefits; enhance our culture through efforts aimed at making the workplace more engaging and inclusive; and acquire talent and facilitate internal talent mobility to create a high-performing and diverse workforce.

As of January 29, 2022, we employed approximately 1,096 employees, including approximately 907 full-time employees and 189 part-time and seasonal employees, with approximately 960 in the U.S, and 136 internationally. We are not a party to any collective bargaining agreement with respect to our employees.

We believe our equitable and inclusive employment environment, underpinned with diverse teams, enables us to create, develop and implement core values that leverage the strengths of our workforce to exceed customer expectations and meet our growth objectives. We bring together our employees from all different backgrounds to solve our clients’ diverse demands and viewpoints.  

Current initiatives we are working on include employee experience, talent acquisition, external relationships, and community involvement. We place a high value on inclusion and strive to encourage our employees to partner with one another and their communities at large to create a connected community in the truest sense of the word. We are committed to having a diverse talent pipeline by recruiting diverse talent across all leadership and skill areas. We are committed to equal employment opportunity and pay equality, regardless of gender, race/ethnicity, or background.

It is our intent to create a network where our customers, no matter their gender, race, ethnicity, religion, political views or any other characteristic, feel safe and welcome when they tune in. To create such an environment starts with our employees, and we strive to ensure that we create a diverse, inclusive, and dynamic working environment for our employees.

Regulation

Our business segments each compete in distinct subsets of the entertainment, interactive media, digital advertising and ecommerce ecosystems, and all of these subsets are subject to extensive regulation by federal and state authorities.

The cable television industry is subject to extensive regulation by the FCC. The following does not purport to be a complete summary of all of the provisions of the Communications Act of 1934, as amended (“Communications Act”), the Cable Television Consumer Protection Act of 1992, the Telecommunications Act of 1996 (“Telecommunications Act”), or other laws and FCC rules or policies that may affect our operations. Proposals for additional or revised regulations and requirements are pending before, are being considered by, and may in the future be considered by, Congress and federal regulatory agencies from time to time.

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The cable television industry is also regulated by state and local governments with respect to certain franchising matters. The FCC regulates the terms of cable programming networks that are distributed by satellite, as ours is. Those regulations require, among other things, that programming channels be provided to all competing MVPDs on reasonable request. FCC rules also require that all video programming distributed over MVPDs include captioning for the hearing-impaired, and that all programs that were originally produced to be viewed over MVPD facilities include captions if they are subsequently distributed over the internet.

The FCC has required that all full-length television programming redistributed over the internet be captioned, and also requires captioning of programming segments distributed over the internet that were shown on television with closed captions. We currently provide closed captioning on full-length programming redistributed over the internet and other programming segments as required by the Communications Act and implementing rules.

Our e-commerce activities are subject to a number of general business regulations and laws regarding taxation and online commerce. There have been continuing efforts to increase the legal and regulatory obligations and restrictions on companies conducting commerce through the internet, primarily in the areas of taxation, consumer privacy and protection of consumer personal information. A growing number of U.S. state laws impose privacy and data security requirements on companies that collect certain types of personal information and other similar requirements may be adopted in the future. Since our acquisition of 1-2-3.tv Group, which primarily serves consumers in the European Union (“EU”), a portion of our business activities are also now subject to data privacy and security requirements under EU laws such as the General Data Protection Regulation and German Data Protection Authorities’ guidance. The differing data privacy and security requirements depending on the residence of our customers could impose added compliance costs.

We have historically collected sales tax from customers in states where we have physical presence under the principles laid out under the 1992 United States Supreme Court decision in Quill Corp. v. North Dakota and subsequent related state statutes and regulations. We have continually monitored our physical presence activities and have historically registered to collect sales tax in multiple states and localities as physical activities have expanded. On June 21, 2018, the United States Supreme Court issued its decision in the South Dakota v. Wayfair, Inc., which overturned the Quill Corp. v. North Dakota physical presence standard and allows state and local taxing jurisdictions to impose sales tax collection responsibilities on remote sellers like us based solely on making a minimum level of sales into the state. We are monitoring state legislation activities in the wake of South Dakota v. Wayfair, Inc. that would require us to register to collect sales tax in additional state and local taxing jurisdictions and believe we have complied with new state sales tax legislation as enacted to date.

There are a number of U.S. federal and state laws that limit our ability to pursue certain direct marketing activities, including the Telephone Consumer Protection Act, and the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, or the CAN-SPAM Act, and similar laws enacted in various U.S. states. Since our acquisition of 1-2-3.tv Group, which primarily serves consumers in the EU, a portion of our business activities are also now subject to direct marketing requirements and restrictions under EU laws such as the General Data Protection Regulation, German Data Protection Authorities’ guidance, and German national laws such as the Telemedia Act. The statutes govern when and how we may contact consumers through various communication methods, including email, phone calls, and texts, in some cases requiring consent and in others allowing a consumer to opt out of certain communications. These types of regulation may limit our ability to pursue certain direct marketing activities, thus potentially limiting our sales and number of customers.

Changes in consumer protection laws also may impose additional burdens on those companies conducting business online. The adoption of additional laws or regulations may decrease the growth of the internet or other online services, which could, in turn, decrease the demand for our products and services or increase our cost of doing business through the internet.

In addition, since our websites are available over the internet in all states, various states may claim that we are required to qualify to do business as a foreign corporation in such state, a requirement that could result in fees and taxes as well as penalties for the failure to comply. Any new legislation or regulation, the application of laws and regulations from jurisdictions whose laws do not currently apply to our business or the application of existing laws and regulations to the internet and other online services could have a material adverse effect on the growth of our business in this area.

In our entertainment and consumer brands reporting segments, we offer our customers a broad range of merchandise through television, online, mobile mediums, catalog and retail. The manner in which we promote and sell our merchandise,

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including claims and representations made in connection with these efforts, is regulated by a wide variety of federal, state and local laws, regulations, rules, policies and procedures in the U.S. and in the EU (to the extent we conduct business activities in the EU following our acquisition of 1-2-3.tv Group) in the U.S. and in the EU (to the extent we conduct business activities in the EU following our acquisition of 1-2-3.tv Group). Some examples of these that affect the manner in which we sell and promote merchandise or otherwise operate our businesses include, but are not limited to, the following:

These laws, regulations, rules, policies and procedures are subject to change at any time. Unfavorable changes that are applicable to our operations could decrease demand for merchandise offered by us, increase costs which we may not be able to offset, subject us to additional liabilities and/or otherwise adversely affect our businesses.

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in our internal control over financial reporting. A material weakness is a deficiency, or combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of the Company’s annual or interim financial statements will not be prevented or detected on a timely basis. The following material weaknesses in our internal control over financial reporting have been identified:

If we are unable to effectively remediate these material weaknesses and maintain effective internal control over financial reporting, we may fail to prevent or detect material misstatements in our financial statements, in which case investors may lose confidence in the accuracy and completeness of our financial statements.

We have a history of losses and a high fixed cost operating base and may not be able to achieve or maintain profitable operations in the future.

We experienced operating losses of approximately $10,725, $7,940 and $52,525 in fiscal 2021, fiscal 2020 and fiscal 2019. We reported net losses of $23,026, $13,234 and $56,296 in fiscal 2021, fiscal 2020 and fiscal 2019. There is no assurance that we will be able to achieve or maintain profitable operations in future fiscal years. Our television shopping business operates with a high fixed cost base, primarily driven by fixed fees under distribution agreements with cable and direct-to-home satellite providers to carry our programming. In order to operate on a profitable basis, we must reach and maintain sufficient annual sales revenues to cover our high fixed cost base and/or negotiate a reduction in this cost structure. If our sales levels are not sufficient to cover our operating expenses, our ability to reduce operating expenses in the near term will be limited by the fixed cost base. In that case, our earnings, cash balance and growth prospects could be materially adversely affected.

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Given this trend, if not reversed, it could reduce our operating cash resources to the point where we will not have sufficient liquidity to meet the ongoing cash commitments and obligations to continue operating our business. As of January 29, 2022, we had approximately $11,295 in unrestricted cash. We expect to use our cash and available credit line to finance our working capital requirements and to make necessary capital expenditures in order to operate our business and to fund any further operating losses. We have had a historic trend of operating losses, which, if not reversed, could reduce our operating cash resources to the point where we would not be able to adequately fund working capital requirements or necessary capital expenditures.

We have had a historic trend of operating losses, which, if not reversed, could reduce our operating cash resources to the point where we will not have sufficient liquidity to meet the ongoing cash commitments and obligations to continue operating our business.

Given this trend, if not reversed, it could reduce our operating cash resources to the point where we will not have sufficient liquidity to meet the ongoing cash commitments and obligations to continue operating our business. As of January 29, 2022, we had approximately $11,295 in unrestricted cash. We expect to use our cash and available credit line to finance our working capital requirements and to make necessary capital expenditures in order to operate our business and to fund any further operating losses. We have had a historic trend of operating losses, which, if not reversed, could reduce our operating cash resources to the point where we would not be able to adequately fund working capital requirements or necessary capital expenditures.

We have a loan and security agreement (as amended through September 20, 2021, the “Siena Loan”) with Siena Lending Group LLC (“Siena”), and the other lenders party thereto from time to time, Siena Lending Group LLC, as agent (the “Agent”), and certain additional of our subsidiaries, as guarantors thereunder. The Siena Loan provides a revolving line of credit of up to $80,000 and provides for the issuance of letters of credit in an aggregate amount up to $5,000 which, upon issuance, would be deemed advances under the revolving line of credit.

As of January 29, 2022, we had total borrowings of $60,216 under our revolving line of credit with Siena. Remaining available capacity under the revolving line of credit as of January 29, 2022 was approximately $11,400, which provided liquidity for working capital and general corporate purposes. As of January 29, 2022, we were in compliance with applicable financial covenants of the Siena Credit Facility and expect to be in compliance with applicable financial covenants over the next twelve months.

We and our subsidiaries (the “Borrowers”) have a Promissory Note Secured by Mortgages with GreenLake Real Estate Finance LLC whereby GreenLake agreed to make a secured term loan to the Borrowers in the original amount of $28,500. The GreenLake Note is secured by, among other things, mortgages encumbering our owned properties in Eden Prairie, Minnesota and Bowling Green, Kentucky (collectively, the “Mortgages”) as well as other assets as described in the GreenLake Note. The GreenLake Note is scheduled to mature on July 31, 2024.

As of January 29, 2022, there was $28,500 outstanding under the term loan with GreenLake. Principal borrowings under the term loan are non-amortizing over the life of the loan.

We completed and closed on our $80,000 offering of 8.50% Senior Unsecured Notes due 2026 (the “Notes”) and issued the Note. As of January 29, 2022, the entire $80,000 principal amount of the Notes was outstanding.

We have significant future commitments for our cash, which primarily include payments for cable and satellite program distribution obligations and the eventual repayment of the Siena Loan, GreenLake Financing, and Senior Notes. Based on our current projections for fiscal 2022, we believe that our existing cash balances and available credit line will be sufficient to maintain liquidity to fund our normal business operations over the next twelve months. We further believe that our financial resources, along with managing expenses, will allow us to manage the anticipated impact of COVID-19 on our business operations for the foreseeable future which may include reduced sales and net income levels for us.

The seasonality of our business places increased strain on our operations.

Our businesses are subject to seasonal fluctuation, with the highest sales activity normally occurring during our fourth fiscal quarter of the year, namely November through January. Additionally, in our entertainment reporting segment, our television audience (and therefore sales revenue) can be significantly impacted by major world or domestic television-covering events which attract viewership and divert audience attention away from our programming. The seasonality of

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our businesses places increased strain on our operations.  If we do not stock or restock popular products sufficient to meet customer demand, our business would be adversely affected. If we overstock products, we may be required to take significant inventory markdowns or write-offs, which could reduce profitability. We may experience an increase in our net shipping cost due to complimentary upgrades, split-shipments and additional long-zone shipments necessary to ensure timely delivery for the holiday season. Additionally, we may be unable to adequately staff our fulfillment and customer service centers during peak periods, and delivery services and other fulfillment companies and customer service providers may be unable to meet the seasonal demand. The occurrence of any of these factors could have an adverse effect on our business.

Our business, financial condition and results of operations are negatively influenced by adverse economic conditions that impact consumer spending, including inflation and the COVID-19 pandemic.

Our business is sensitive to general economic conditions and business conditions affecting consumer spending including, for example, increased inflation and the COVID-19 pandemic. Our businesses, financial condition and results of operations are negatively influenced by economic conditions that impact consumer spending. If macroeconomic conditions do not continue to improve or if conditions worsen, our business could be adversely affected.

Our results of operations may be adversely impacted by the ongoing COVID-19 pandemic, and the duration and extent to which it will impact our results of operations remains uncertain. Our operations may also be limited or impacted by government monitoring and/or regulation of product sales in connection with the COVID-19 pandemic.  The global spread of COVID-19 has created significant volatility and uncertainty and economic disruption. The extent to which the COVID-19 pandemic impacts our business, operations, financial results and financial condition will depend on numerous evolving factors which are uncertain and cannot be predicted, including: the duration and scope of the pandemic; governmental, business and individuals’ actions taken in response; the effect on our customers and customers’ demand for our services and products; the effect on our suppliers and disruptions to the global supply chain; our ability to sell and provide our services and products, including as a result of travel restrictions and people working from home; disruptions to our operations resulting from the illness of any of our employees, including employees at our fulfillment center; restrictions or disruptions to transportation, including reduced availability of ground or air transport; the ability of our customers to pay for our services and products; and any closures of our and our suppliers’ and customers’ facilities. We have been experiencing disruptions to our business as we implement modifications to employee travel, employee work locations and cancellation of events, among other modifications. In addition, the impact of COVID-19 on macroeconomic conditions may impact the proper functioning of financial and capital markets, commodity and energy prices, and interest rates. If any of these effects of the COVID-19 pandemic were to worsen, it could result in lost or delayed revenue to us. Even after the COVID-19 pandemic has subsided, we may continue to experience adverse impacts to our business as a result of any economic recession or depression that has occurred or may occur in the future. Our employees have been and could be subject to work-from-home orders and other limitations on our business in the states in which we operate. The restrictions, among other things, require us to operate with only certain employees in-person at our facilities. We have focused on taking necessary steps to keep our employees, contractors, vendors, customers, guests, and their families safe during these uncertain times. These uncertainties could reduce our profitability and impact our results of operations.

Our expansion to international markets subject us to a variety of risks that may harm our business.

As a result of the acquisition of the 1-2-3.tv, our operations have expanded to international markets, including Germany and Austria, which exposes us to significant new risks. 1-2-3.tv operates in Germany and Austria, which requires significant resources and management attention and subjects us to legislative, judicial, accounting, regulatory, economic, and political risks in addition to those we already faced in the United States. These include:

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The occurrence of any one of these risks could negatively affect our international business and, consequently, our results of operations generally. Additionally, operating in international markets also requires significant management attention and financial resources. We cannot be certain that the investment and additional resources required in establishing, acquiring, or integrating operations in other countries will produce desired levels of revenues or profitability.

Our ValuePay installment payment program could lead to significant unplanned credit losses if our credit loss rate materially deteriorates.

In our entertainment and consumer brands reporting segments, our ValuePay installment payment program could lead to significant unplanned credit losses if our credit loss rate materially deteriorates. We utilize an installment payment program called ValuePay that enables customers to purchase merchandise and pay for the merchandise in two or more monthly installments. Our ValuePay installment program is a key element of our promotional strategy. As of January 29, 2022, we had approximately $47,008 due from customers under the ValuePay installment program. We maintain allowances for doubtful accounts for estimated losses resulting from the inability of our customers to make required payments. There is no guarantee that we will continue to experience the same credit loss rate that we have in the past or that losses will be within current provisions. A significant increase in our credit losses above what we have been experiencing could result in a material adverse impact on our financial performance.

The majority of customer purchases are paid for by credit or debit cards, including our private label credit card discussed above. Purchases and installment charges made with the ShopHQ private label credit card are non-recourse to us. However, we have credit collection risk from the potential inability to collect future ValuePay installments. Our ValuePay program is an interest-free installment payment program which allows customers to pay by credit card for certain merchandise in two or more equal monthly installments. The percentage of our net sales in which our customers utilized our ValuePay payment program over the past three fiscal years ranged from 50% to 57%. We intend to continue to sell merchandise using the ValuePay program due to its significant promotional value.

Our dependence on a limited number of vendors may impair our ability to operate profitably in the event of an unanticipated loss of such a vendor:

In our entertainment and consumer brands reporting segments, we purchase products from domestic and foreign manufacturers and/or their suppliers and are often able to make purchases on more favorable terms due to the volume of products purchased or sold. Some of our purchasing arrangements with our vendors include inventory terms that allow for return privileges for a portion of the order or stock balancing. We generally do not have long-term commitments with our vendors, and a variety of sources are available for each category of merchandise sold. During fiscal 2021, 2020 and 2019, products purchased from one vendor accounted for approximately 16%, 20% and 19%, respectively, of our consolidated net sales. During fiscal 2021 and fiscal 2020, products purchased from a second vendor accounted for approximately 11% and 14%, respectively, of our consolidated net sales. Both vendors are related parties and additional information is contained in Note 19 – “Related Party Transactions” in the notes to our consolidated financial statements. We believe that we could find alternative products for these vendors’ merchandise assortment if they ceased supplying merchandise; however, the unanticipated loss of any large supplier could negatively impact our sales and earnings.

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We rely on a limited number of independent shipping companies to deliver our merchandise. If our independent shipping companies fail to deliver our merchandise in a timely and accurate manner, our reputation and brand may be damaged. If relationships with our independent shipping companies are terminated, we may experience an increase in delivery costs. We rely on a limited number of shipping companies to deliver inventory to us and completed orders to our customers. If we are not able to negotiate acceptable terms with these companies or they experience performance problems or other difficulties, it could negatively impact our operating results and customer experience.

Covenants in our debt agreements restrict our business in many ways.

The Siena Credit Facility contains various representation, warranties and financial and other covenants that limit our ability and/or our subsidiaries’ ability to, among other things, incur additional indebtedness or prepay existing indebtedness, to create liens or other encumbrances, to sell or otherwise dispose of assets, to merge or consolidate with other entities, and to make certain restricted payments, including payments of dividends to common shareholders. The financial covenants include a maximum senior leverage ratio and minimum liquidity requirements. Please refer to Item 7, “Management’s Discussion and Analysis of Financial Condition and Results of Operations-Financial Condition, Liquidity and Capital Resources-Sources of Liquidity” below for a discussion of the Siena Credit Facility. Upon the occurrence of an event of default under the Siena Credit Facility, the lender could elect to declare all amounts outstanding under the Siena Credit Facility to be immediately due and payable and terminate all commitments to extend further credit. If we were unable to repay those amounts, the lender could proceed against the collateral granted to them to secure that indebtedness. If the lender and counter parties under the Siena Credit Facility accelerate the repayment of obligations, we may not have sufficient assets to repay such obligations. Our borrowings under the Siena Credit Facility are at variable rates of interest and expose us to interest rate risk. If interest rates increase, our debt service obligations on the variable rate indebtedness will also increase even though the amount borrowed remains the same, and our net income would decrease.

Our success depends on our continued ability to capture and retain customers in a cost-effective manner.

In our entertainment and consumer brands segments, our success depends on our continued ability to capture and retain customers in a cost-effective manner. In an effort to attract and retain customers, we use considerable funds and resources for various marketing and merchandising initiatives, particularly for the production and distribution of television programming and the updating of our digital strategy to increasingly engage customers through digital channels and social media. These initiatives, however, may not resonate with existing customers or consumers generally or may not be cost-effective. We believe that costs associated with the production and distribution of our television programming and costs associated with digital marketing, including search engine marketing and social media marketing, may increase in the foreseeable future. Moreover, a search engine could, for competitive or other purposes, alter its search algorithms or results causing our website to place lower in search query results. Furthermore, the failure to successfully manage our search engine optimization and search engine marketing strategies could result in a substantial decrease in traffic to our website, as well as increased costs if we were to replace free traffic with paid traffic. Any failure to sustain user traffic or to monetize such traffic could materially adversely affect the financial performance of our business and, as a result, adversely affect our financial results. In addition, customers continue to increase their expectations for faster delivery times with free or reduced shipping prices. Increased delivery costs, particularly if we are unable to offset them by increasing prices without a detrimental effect on customer demand, and the extent to which we offer shipping promotions to our customers, could have an adverse effect on our business, financial condition and results of operations.

Our inability to recruit and retain key employees may adversely impact our ability to sustain growth.

Our growth is contingent, in part, on our ability to retain and recruit employees who have the distinct skills necessary for a business that demands knowledge of the interactive media industry, digital advertising industry, omnichannel retail industry, merchandising and product sourcing, television production, televised and internet-based marketing and direct-to-consumer and retail store fulfillment. In recent years, we have experienced significant senior management turnover and reductions in force as discussed in Note 21 – “Executive and Management Transition Costs” and Note 20 – “Restructuring Costs” in the notes to our consolidated financial statements. The marketplace for such key employees is very competitive and limited. Our growth may be adversely impacted if we are unable to attract and retain key employees. In addition, turnover of senior management can adversely impact our stock price, our results of operations, our vendor relationships and may make recruiting for future management positions more difficult. Further we may incur significant expenses related

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to any executive transition costs that may impact our operating results. In fiscal 2021, fiscal 2020 and fiscal 2019 we recorded charges to income of $0, $0 and $2,741, respectively, related to executive and management transition costs incurred, which included severance payments and other incremental expenses.

Any acquisition we make could adversely impact our performance.

From time to time, we may acquire other businesses. An acquisition involves certain inherent risks, including the failure to retain key personnel from an acquired business; undisclosed or subsequently arising liabilities; failure to successfully integrate operations of the acquired business into our existing business, such as new product offerings or information technology systems; failure to generate expected synergies such as cost reductions or revenue gains; and the potential diversion of management resources from existing operations to respond to unforeseen issues arising in the context of the integration of a new business. Additionally, we may incur significant expenses in connection with acquisitions and our overall profitability could be adversely affected if our associated investments and expenses are not justified by the revenues and profits, if any.

Risks Relating to the Products We Market and Sell

We depend on relationships with numerous manufacturers and suppliers for our products and proprietary brands; a decrease in product quality or an increase in product cost, the unanticipated loss of our larger suppliers, or the lack of customer receptivity or brand acceptance to our proprietary brands could impact our sales.

We procure merchandise from numerous manufacturers and suppliers generally pursuant to short-term contracts and purchase orders. We depend on the ability of these parties to timely produce and deliver goods that meet applicable quality standards, which is impacted by a number of factors not within the control of these parties, such as political or financial instability, trade restrictions, tariffs, currency exchange rates, and transport capacity and costs, among others, and to deliver products that meet or exceed our customers’ expectations.

Our failure to identify new vendors and manufacturers, maintain relationships with a significant number of existing vendors and manufacturers and/or access quality merchandise in a timely and efficient manner could cause us to miss customer delivery dates or delay scheduled promotions, which could result in the failure to meet customer expectations and could cause customers to cancel orders or cause us to be unable to source merchandise in sufficient quantities, which could result in lost sales.

It is possible that one or more of our significant brands or vendors could experience financial difficulties and be unable to supply us their product. In addition, the unanticipated loss of one or a number of our significant brands or vendors, could materially and adversely impact our sales and profitability.

Our efforts to accelerate the development of proprietary brands may require working capital investments for the development and promotion of new brands and concepts. In addition, factors such as minimum purchase quantities and reduced merchandise return rights, typically associated with the purchasing of products associated with proprietary brands, can lead to excess on-hand inventory if sales of these brands do not meet our expectations due to a lack of customer receptivity or brand acceptance. Our ability to successfully offer a wider assortment of proprietary merchandise may also be adversely impacted if any of the risks mentioned above related to our manufacturers and suppliers materialize.

If we do not manage our inventory effectively, our sales, gross profit and profitability could be adversely affected. If we do not identify and respond to emerging trends in consumer spending and preferences quickly enough, we may harm our ability to retain our existing customers or attract new customers. If we purchase too much inventory, we may be forced to sell our merchandise at lower average margins through increased markdowns, which could adversely affect our results of operations, our overall gross margins and our profitability.

We may be subject to product liability claims if people or properties are harmed by products sold or developed by us, or we may be subject to voluntary or involuntary product recalls, or subject to liability for on-air statements made by our hosts or guest-hosts.

Products sold or developed by us may expose us to product liability or product safety claims relating to personal injury, death or property damage caused by such products and may require us to take actions such as product recalls, which could involve significant expense incurred by us.

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We maintain and have generally required the manufacturers and vendors of these products to carry product liability and errors and omissions insurance. We also require that our vendors fully indemnify us for such claims. There can be no assurance that we will maintain this insurance coverage or obtain additional coverage on acceptable terms, or that this insurance will provide adequate coverage against all potential claims or even be available with respect to any particular claim. There also can be no assurance that our suppliers will continue to maintain this insurance or that this coverage will be adequate or available with respect to any particular claims or will fulfill their contractual indemnification duties. Product liability claims could result in a material adverse impact on our financial performance.

We may also be subject to involuntary product recalls, or we may voluntarily conduct a product recall. The costs associated with product recalls individually or in the aggregate in any given fiscal year, or for any particular recall event, could be significant. Although we maintain product recall insurance, and we require that our vendors fully indemnify us for such events, an involuntary product recall could result in a material adverse impact on our financial performance. In addition, any product recall, regardless of direct costs of the recall, may harm consumer perceptions of our products and have a negative impact on our future revenues and results of operations.

In addition, the live unscripted nature of our television broadcasting may subject us to misrepresentation or false advertising claims by our customers, the Federal Trade Commission and state attorneys general. We are subject to two FTC consent decrees, one issued in 2001 and one issued in 2003; both have a duration of 20 years. They consist of claims involving recordkeeping, compliance policies, and attention to detail on claim substantiation. Violations of these decrees could result in significant civil fines and penalties.

Risks Relating to Television Viewership Trends, Technologies & Costs

Changes in technology and in consumer viewing patterns may negatively impact our video content viewing and could result in a decrease in revenue.

As a multiplatform interactive video service, we are dependent on our ability to attract and retain viewers and must successfully adapt to technological advances in the media entertainment industry, including the emergence of alternative distribution platforms, such as digital video recorders, video-on-demand and subscription video-on-demand (e.g., Netflix, Hulu, Amazon Prime). New technologies affect the manner in which our programming is distributed to consumers, the sources and nature of competing content offerings, and the time and manner in which consumers view our programming. This trend has impacted the traditional forms of distribution, as evidenced by the industry-wide decline in ratings for broadcast television, the development of alternative distribution channels for broadcast and cable programming and declines in cable and satellite subscriber levels across the industry. In order to respond to these developments, we have developed a multiplatform distribution approach, including delivering our content over various streaming applications such as Roku and Apple TV and distribution through social media platforms. However, there can be no assurance that we will successfully respond to these changes which could result in a loss of viewership and a decrease in revenue.

The failure to secure suitable placement for our television programming could adversely affect our ability to attract and retain television viewers and could result in a decrease in revenue.

We are dependent upon our ability to compete for television viewers. Effectively competing for television viewers is dependent, in part, on our ability to secure placement of our television programming within a suitable programming tier at a desirable channel position or format. The majority of multi-video programming distributors now offer programming on a digital basis, which has resulted in increased channel capacity.

In the entertainment reporting segment, we generally operate under distribution agreements with cable operators, direct-to-home satellite providers and telecommunications companies to distribute our television programming over their systems. The terms of the distribution agreements typically range from one to five years. During any fiscal year, certain agreements with cable, satellite or other distributors may or have expired. Under certain circumstances, we or our distributors may cancel the agreements prior to their expiration. Additionally, we may elect not to renew distribution agreements whose terms result in sub-standard or negative contribution margins. The distribution agreements generally provide that we will pay each operator a monthly access fee, based on the number of homes receiving our programming, and in some cases marketing support payments. We frequently review distribution opportunities with cable system operators and broadcast stations providing for full- or part-time carriage of our programming. We believe that our major competitors to our entertainment brands leverage their economies of scale to incur cable and satellite distribution fees

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representing a significantly lower percentage of their sales attributable to their television programming than we do, and that their fee arrangements are substantially on a commission basis (in some cases with minimum guarantees) rather than on the predominantly fixed-cost basis that we currently have. At our current sales level, our distribution costs as a percentage of total consolidated net sales are higher than those of our competition. However, we can leverage this fixed expense with sales growth to accelerate improvement in our profitability. We may not be able to expand or could lose some of our existing programming distribution if we cannot negotiate profitable distribution agreements.

We may not be able to maintain our satellite services in certain situations beyond our control, which may cause our programming to go off the air for a period of time and cause us to incur substantial additional costs.

Our programming is presently distributed to cable systems, television stations and satellite dish operators via a leased communications satellite transponder. Satellite service may be interrupted due to a variety of circumstances beyond our control, such as satellite transponder failure, satellite fuel depletion, governmental action, preemption by the satellite service provider, solar activity and service failure. Our satellite transponder agreement provides us with preemptible back-up service if satellite transmission is interrupted under certain conditions. In the event of a serious transmission interruption where back-up service is not available, we may need to enter into new arrangements, resulting in substantial additional costs and the inability to broadcast our signal for some period of time.

A natural disaster or significant weather event could seriously impact our ability to operate, including our ability to broadcast, operate websites, process and fulfill transactions, respond to customer inquiries and generally maintain cost-efficient operations.

Our television broadcast studios, internet operations, IT systems, merchandising team, inventory control systems, executive offices, and finance/accounting functions, among others, are in our adjacent offices at 6740 and 6690, Shady Oak Road in Eden Prairie, Minnesota. In addition, our only fulfillment and distribution facility is centralized at a location in Bowling Green, Kentucky. Fire, flood, severe weather, power loss, telecommunications failure, hurricanes, tornadoes, earthquakes, acts of war or terrorism, acts of God and similar events or disruptions may damage or interrupt our broadcast, computer, broadband or other communications systems and infrastructures, including the distribution of our network to our customers, at any time. While we have certain business continuity plans in place, no assurances can be given as to how quickly we would be able to resume operations and how long it may take to return to normal operations. We could incur substantial financial losses above and beyond what may be covered by applicable insurance policies, and may experience a loss of sales, customers, vendors and employees during the recovery period.

A natural disaster or significant weather event could materially interfere with our customers’ ability to receive our broadcast or reach us to purchase our products and services.

Our operations rely on our customers’ access to third party content distribution networks, communications providers and utilities like cable, satellite and OTT television services, as well as internet, telephone and power utilities. A natural disaster or significant weather event could make one or more of these third-party services unavailable to our customers and could lead to the deferral or loss of sales of our goods and services.

Risks Related to Digital Advertising

We rely on integrations with demand- and supply-side advertising platforms, ad servers and social platforms. A decrease in demand for advertising and public criticism of digital advertising technology in the U.S. and internationally could adversely affect the demand for and use of our solutions.

Our business depends, in part, on the demand for digital advertising technology. The digital advertising industry has been and may in the future be subject to reputational harm, negative media attention and public complaint relating to, among other things, the alleged lack of transparency and anti-competitive behavior among advertising technology companies. This public criticism could result in increased data privacy and anti-trust regulation in the digital advertising industry in the U.S. and internationally. In addition, our services are delivered in web browsers, mobile apps and other software environments where online advertising is displayed, and certain of these environments have announced future plans to phase out or end the use of cookies and other third-party tracking technology on their operating systems in order to provide more consumer data privacy. While our technology and solutions do not rely on

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persistent identifiers or cookie-based or cross-site tracking, these changes and other updates to software functionality in these environments could hurt our ability to effectively deliver our services.

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We may not be able to accurately predict changes in overall advertiser demand for the channels in which it operates and cannot assure that our investment in formats will correspond to any such changes. Advertisers may change the fees they charge users or otherwise change their business model in a manner that slows the widespread acceptance of advertisements. In order for our services to be successful, there must be a large base of advertisers to deliver content. We have limited or no control over the availability or acceptance of those advertisements, and any change in the licensing terms, costs, availability or user acceptance of these advertisements could adversely affect our business. Any decrease in the use of mobile, display, and video advertising, whether due to customers losing confidence in the value or effectiveness of such channels, regulatory restrictions, public criticism or other causes, or any inability to further penetrate CTV or enter new and emerging advertising channels, could adversely affect our business, results of operations, and financial condition. Any change or decrease in the demand for digital advertising, including on social media platforms as a result of avoidance campaigns or similar events, may negatively affect the demand for and use of our solutions. If our customers significantly reduce or eliminate their digital ad spend in response to the public criticism of the digital advertising industry or its related effects, our business, financial condition and results of operations could be adversely affected.

Risks Related to Our Securities

Our stock price has been volatile, and continued volatility could adversely affect our ability to raise additional capital and/or cause us to be subject to securities class action litigation.  

Most recently, on April 21, 2022, the market price of our common stock, as reported on The Nasdaq Capital Market, closed at a price of $4.38 per share. The prices at which our common stock is quoted and the prices which investors may realize will be influenced by several factors, some specific to our company and operations and some that may affect our sector or public companies generally. Our progress in developing and commercializing our products, our quarterly operating results, announcements of new products by us or our competitors, our perceived prospects, changes in securities’ analysts’ recommendations or earnings estimates, changes in general conditions in the economy or the financial markets, adverse events related to our strategic relationships, significant sales of our common stock by existing stockholders and other developments affecting us or our competitors could cause the market price of our common stock to fluctuate substantially. In addition, in recent years, including the first half of 2020, the stock market has experienced extreme price and volume fluctuations. This volatility has had a significant effect on the market prices of securities issued by many companies for reasons unrelated to their operating performance. These market fluctuations, regardless of the cause, may materially and adversely affect our stock price, regardless of our operating results. In addition, we may be subject to securities class action litigation as a result of volatility in the price of our common stock, which could result in substantial costs and diversion of management’s attention and resources and could harm our stock price, business, prospects, results of operations and financial condition.

There can be no assurance that we will be able to comply with the continued listing standards of The Nasdaq Capital Market and we could be delisted.

Even though our common stock is listed on The Nasdaq Capital Market, we cannot assure you that we will be able to comply with standards necessary to maintain a listing of our common stock on The Nasdaq Capital Market. Our failure to meet the continuing listing requirements may result in our common stock being delisted from The Nasdaq Capital Market.

Our business could be negatively affected as a result of the actions of activist or hostile shareholders.

Our business could be negatively affected as a result of shareholder activism, which could cause us to incur significant expense, hinder execution of our business strategy, and impact the trading value of our securities. Shareholder activism, which could take many forms or arise in a variety of situations, has been increasing in publicly traded companies in recent years and we are subject to the risks associated with such activism. In 2014, we were the subject of a proxy contest. Shareholder activism, including potential proxy contests, requires significant time and attention by management and the board of directors, potentially interfering with our ability to execute our strategic plan. Additionally, such shareholder activism could give rise to perceived uncertainties as to our future direction, adversely affect our relationships with key executives and business partners and make it more difficult to attract and retain qualified personnel. Also, we may be

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required to incur significant legal fees and other expenses related to activist shareholder matters. Any of these impacts could materially and adversely affect our business and operating results. Further, the market price of our common stock could be subject to significant fluctuation or otherwise be adversely affected by the events, risks and uncertainties described in this “Risk Factors” section.

It may be difficult for a third party to acquire us, even if doing so may be beneficial to our shareholders.

We adopted a Shareholder Rights Plan to preserve the value of certain deferred tax benefits, including those generated by net operating losses, as described further under Part II, Item 5 below. The Shareholder Rights Plan may have anti-takeover effects. The provisions of the Shareholder Rights Plan could have the effect of delaying, deferring, or preventing a change of control of us and could discourage bids for our common stock at a premium over the market price of our common stock.

Risks Related to Regulation

Trade policies, tariffs, tax or other government regulations that increase the effective price of products manufactured in other countries and imported into the United States could have a material adverse effect on our business.

A material percentage of the products that we offer on our television programming and our e-commerce websites are imported by us or our vendors, from other countries. Uncertainty with respect to trade policies, tariffs, tax and government regulations affecting trade between the United States and other countries has increased. Many of our vendors source a large percentage of the products we sell from other countries. Major developments in trade relations, such as the imposition of tariffs on imported products, could have a material adverse effect on our financial results and business.

We may be subject to claims by consumers and state and federal authorities for security breaches involving customer information, which could materially harm our reputation and business or add significant administrative and compliance cost to our operations.

In order to operate our business, which includes multiple retail channels, we take orders for our products from customers. This requires us to obtain personal information from these customers including, but not limited to, credit card numbers. Although we take reasonable and appropriate security measures to protect customer information, there is still the risk that external or internal security breaches or digital or telecommunications spoofing could occur, including cyber incidents. In addition, new tools and discoveries by third parties in computer or communications technology or software or other developments may facilitate or result in a future compromise of consumer information under applicable law or breach of our computer systems. Such compromises or breaches could result in consumer harm or risk of harm, data loss and/or identity theft leading to significant liability or costs to us from notification requirements, lawsuits brought by consumers, shareholders or other businesses seeking monetary redress, state and federal authorities for fines and penalties, and could also lead to interruptions in our operations and negative publicity causing damage to our reputation and limiting customers’ willingness to purchase products from us. Businesses in the retail industry have experienced material sales declines after discovering data breaches, and our business could be similarly impacted by cyber incidents. Reputational value is based in large part on perceptions of subjective qualities. While reputations may take decades to build, a significant negative incident can erode trust and confidence, particularly if it results in adverse mainstream and social media publicity, governmental investigations or litigation. Theft of credit card numbers of consumers could result in significant fines and consumer settlement costs, litigation costs, FTC audit requirements, and significant internal administrative costs.

Various federal, state, and foreign laws and regulations as well as industry standards and contractual obligations govern the collection, use, retention, protection, disclosure, cross-border transfer, localization, sharing, and security of the data we receive from and about our users, employees, and other individuals. The regulatory environment for the collection and use of personal information by device manufacturers, online service providers, content distributors, advertisers, and publishers is evolving in the United States and internationally. Privacy and consumer rights groups and government bodies (including the U.S. Federal Trade Commission (“FTC”), state attorneys general, the European Commission, and European data protection authorities), have increasingly scrutinized privacy issues with respect to devices that identify or are identifiable to a person (or household or device) and personal information collected through the internet, and we expect such scrutiny to continue to increase. The U.S. federal government, U.S. states, and foreign governments have enacted (or are considering) laws and regulations that could significantly restrict industry participants’ ability to collect, use, and share

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personal information, such as by regulating the level of consumer notice and consent required before a company can place cookies or other tracking technologies. For example, the EU General Data Protection Regulation (“GDPR”) imposes detailed requirements related to the collection, storage, and use of personal information related to people located in the EU (or which is processed in the context of EU operations) and places new data protection obligations and restrictions on organizations and may require us to make further changes to our policies and procedures in the future beyond what we have already done.

We made changes to our data protection compliance program to prepare for the GDPR and will continue to monitor the implementation and evolution of data protection regulations, but if we are not compliant with GDPR or other data protection laws or regulations if and when implemented, we may be subject to significant fines and penalties (such as restrictions on personal information processing) and our business may be harmed. For example, under the GDPR, fines of up to 4% of the annual global revenue of a noncompliant company, as well as data processing restrictions, could be imposed for violation of certain of the GDPR’s requirements. Data protection laws continue to proliferate throughout the world and such laws likely apply to our business.

In addition to possible claims for security breaches involving customer information, the secure processing, maintenance and transmission of customer information is critical to our operations and business strategy, and we devote significant resources to protect our customer information. The expenses associated with complying with a patchwork of state laws imposing differing security requirements depending on the residence of our customers could reduce our operating margins. As mentioned above, there have been continuing efforts to increase the legal and regulatory obligations and restrictions on companies conducting commerce, primarily in the areas of taxation, consumer privacy and protection of consumer personal information, and we may have to devote significant resources to information security.

Nearly all of our sales are paid for by customers using credit or debit cards and the increasingly heightened Payment Card Industry (“PCI”) standards regarding the storage and security of customer information could potentially impact our ability to accept card brands.

Nearly all of our customers pay for purchases via a credit or debit card. Credit and debit card payment organizations continue to heighten PCI standards that are applicable to all merchants who accept these cards. These standards primarily pertain to the processes and procedures for encrypted use and secure storage of customer data. By virtue of the volume of our overall credit card transactions, we are a Level 1 merchant which requires the annual completion of a formal Report of Compliance (“ROC”) by a Qualified Security Assessor. Failure to comply with PCI standards, as required by card issuers, could result in card brand fines and/or the possible inability for us to accept a card brand. Our inability to accept one or all card brands could materially adversely affect sales. Although we received an approved ROC on July 31, 2020, there is no guarantee that we will continue to receive such approvals.

Technology and Intellectual Property Risks

We significantly rely on technology and information management tools and operational applications to run our existing businesses, the failure of which could adversely impact our operations.

Our businesses are dependent, in part, on the use of sophisticated technology, some of which is provided to us by third parties. These technologies include, but are not necessarily limited to, satellite based transmission of our programming, use of the internet and other mobile commerce devices in relation to our on-line business, new digital technology used to manage and supplement our television broadcast operations, the age of our legacy operational  applications to distribute product to our customers and a network of complex computer hardware and software to manage an ever increasing need for information and information management tools. The failure of any of these legacy systems or operational infrastructure elements, technologies, or our inability to have this technology supported, updated, expanded or integrated into new business processes or other technologies, could adversely impact our operations. Although we have developed alternative sources of technology and built redundancy into our computer networks and tools, there can be no assurance that these efforts to date would protect us against all potential issues or disaster occurrences related to the loss of any such technologies or their use. Further, we may face challenges in keeping pace with rapid technological changes and adopting new products or platforms and migrating to new systems.

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We may fail to adequately protect our intellectual property rights or may be accused of infringing upon the intellectual property rights of third parties.

We regard our intellectual property rights, including patents, service marks, trademarks and domain names, copyrights and trade secrets, as critical to our success. We rely heavily upon software, databases and other systemic components that are necessary to manage and support our business operations, many of which utilize or incorporate third party products, services or technologies. In addition, we license intellectual property rights in connection with the various products and services we offer to consumers. As a result, we are subject to legal proceedings and claims in the ordinary course of business, including claims of alleged infringement of the trademarks, copyrights, patents and other intellectual property rights of third parties. In addition, litigation may be necessary to enforce our intellectual property rights, protect trade secrets or to determine the validity and scope of proprietary rights claimed by others. Any litigation of this nature, regardless of outcome or merit, could result in substantial costs and diversion of management and technical resources, any of which could adversely affect our business, financial condition and results of operations. Patent litigation tends to be particularly protracted and expensive. Our failure to protect our intellectual property rights in a meaningful manner or challenges to third party intellectual property we utilize or that is related to our contractual rights could result in erosion of brand names; limit our ability to control marketing on or through the internet using our various domain names; limit our useful technologies; disrupt normal business operations or result in unanticipated costs, which could adversely affect our business, financial condition and results of operations.

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Unit. A Unit is intended to give the shareholder approximately the same dividend, voting and liquidation rights as would one share of common stock, and should approximate the value of one share of common stock. At any time after a person becomes an Acquiring Person, the board of directors may exchange all or part of the outstanding Rights (other than those held by an Acquiring Person) for shares of common stock at an exchange rate of one share of common stock (and, in certain circumstances, a Unit) for each Right. We will promptly give public notice of any exchange (although failure to give notice will not affect the validity of the exchange).

On July 12, 2019, our shareholders re-approved the Rights Plan at the 2019 annual meeting of shareholders. The Rights will expire upon certain events described in the Rights Plan, including the close of business on the date of the third annual meeting of shareholders following the last annual meeting of our shareholders of at which the Rights Plan was most recently approved by shareholders, unless the Rights Plan is re-approved by shareholders at that third annual meeting of shareholders. However, in no event will the Rights Plan expire later than the close of business on July 13, 2025.

Until the close of business on the tenth calendar day after the day a public announcement or a filing is made indicating that a person or group has become an Acquiring Person, we may in our sole and absolute discretion amend the Rights or the Rights Plan agreement without the approval of any holders of the Rights or shares of common stock in any manner, including without limitation, amendments that increase or decrease the purchase price or redemption price or accelerate or extend the final expiration date or the period in which the Rights may be redeemed. We may also amend the Rights Plan after the close of business on the tenth calendar day after the day such public announcement or filing is made to cure ambiguities, to correct defective or inconsistent provisions, to shorten or lengthen time periods under the Rights Plan or in any other manner that does not adversely affect the interests of holders of the Rights. No amendment of the Rights Plan may extend its expiration date.

The foregoing summary of the Rights Plan does not purport to be complete and is qualified by reference to the full text of the Rights Plan agreement, which has been filed as Exhibit 4.2 to this Annual Report on Form 10-K and is incorporated herein by reference.

Item 6. Reserved

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During fiscal 2021, we began reporting based on three reportable segments:

The corresponding current and prior period segment disclosures have been recast to reflect the current segment presentation.

Results of Operations – iMedia Consolidated

The following table sets forth, for the periods indicated, certain statement of operations data.

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Consolidated Net Sales

Consolidated net sales during fiscal 2021 were $551,134 compared to $454,171 during fiscal 2020, a 21.3% increase. Consolidated net sales during fiscal 2020 were $454,171 compared to $501,822 during fiscal 2019, a 9.5% decrease. The increase in consolidated net sales in 2021 was primarily due to the incremental net sales from the completed 2021 acquisitions of Christopher & Banks, Synacor, 1-2-3.tv, and TCO, and the improved performance of the entertainment segment. For 2020, the $47,651 or 9.5% decrease in net sales was primarily due to our priority to increase our gross margin by decreasing net sales of merchandise categories with lower gross margin rates, such as consumer electronics.      

Gross Margin

Consolidated gross margin percentages were 40.4%, 36.8% and 32.6% for 2021, 2020 and 2019, respectively. For 2021, the 361-basis point improvement was primarily attributable to the entertainment segment’s intentional increase in the percentage of sales from merchandise categories with higher margin rates, such as jewelry and watches, fashion and beauty. Our consolidated gross margin percentage was further improved in 2021 due to the impact from the completed 2021 acquisition of Christopher & Banks in the consumer brands segment. The consumer brands segment had a gross margin percentage of 49.5% for 2021 and contributed 9.9% of total gross margin in 2021 compared to 0.5% of total gross margin in 2020. For 2020, the 417-basis point increase was also primarily attributable to the entertainment segment’s gross margin increases due to strategic promotional and pricing initiatives.

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Total Operating Expenses

Total operating expenses were $233,341, $174,993 and $216,162 for fiscal 2021, fiscal 2020 and fiscal 2019, respectively, representing an increase of $58,348 or 33% from fiscal 2020 to fiscal 2021, and a decrease of $41,169 or 19.0% from fiscal 2019 to fiscal 2020. Total operating expenses as a percentage of net sales were 42.3%, 38.5% and 43.1% for fiscal 2021, fiscal 2020 and fiscal 2019, respectively. For 2021, the increase in operating expenses is primarily due to the incremental operating expenses generated from the completed 2021 acquisitions of 1-2-3.tv, Synacor’s Portal and Advertising Business, Christopher & Banks, and TCO. These incremental operating costs from these acquisitions accounted for approximately 60% of the consolidated increase in total operating expenses. Additionally, in 2021 we incurred $6,974 of one-time transaction and transition costs associated with the 2021 acquisitions. Operating expenses also increased as a result of increased variable distribution and selling expenses and general and administrative expenses in the entertainment segment. Restructuring cost for 2021 were $634. For 2020, the decrease in operating expenses of $41,169 is due to the decline in distribution and selling expenses and lower general and administrative expenses.

Distribution and selling

Distribution and selling expense for fiscal 2021 increased $28,592, or 22.0%, to $158,512 or 28.8% of net sales compared to $129,920 or 28.6% of net sales in fiscal 2020. Approximately 70%, or $19,690, of the distribution and selling expense increase during fiscal 2021 is attributable to incremental distribution and selling expenses of the acquisitions of 1-2-3.tv, Synacor’s Portal and Advertising Business, Christopher & Banks, and TCO completed in 2021, and by the entertainment segment’s increased program distribution costs of $3,090. For 2020, the $40,667 decrease in distribution and selling expenses was primarily due to the entertainment segment’s decreased program distribution expenses, payroll and benefits, digital marketing expenses and other selling expenses.

General and administrative

General and administrative expense was $38,589, $20,336 and $25,611 for fiscal 2021, fiscal 2020 and fiscal 2019, respectively, representing an increase of $18,253 or 89.8% from fiscal 2020 to fiscal 2021, and a decrease of $5,275 or 20.6% from fiscal 2019 to fiscal 2020. General and administrative expenses as a percentage of net sales were 7.0%, 4.5% and 5.1% for fiscal 2021, fiscal 2020 and fiscal 2019. For 2021, approximately 61%, or $11,129, of the $18,253 increase in general and administrative expense was due to the incremental general and administrative expenses generated from the acquisitions completed in 2021, plus $6,974 in one-time transaction and transition costs associated with these acquisitions. For 2020, the $5,275 decrease in general and administrative expenses was primarily due to decreased payroll and benefits, reduced share-based compensation and other general expenses.    

Depreciation and amortization

Depreciation and amortization expense was $35,606, $24,022 and $8,057 for fiscal 2021, fiscal 2020 and fiscal 2019, respectively, representing an increase of $11,584 from fiscal 2020 to fiscal 2021, and an increase of $15,965 or 198.2% from fiscal 2019 to fiscal 2020. Depreciation and amortization as a percentage of net sales was 6.5%, 5.3% and 1.6% for fiscal 2021, fiscal 2020 and fiscal 2019, respectively. For 2021, the $11,584 increase in depreciation and amortization was primarily due to the entertainment segment’s increased broadcast rights amortization expense and the incremental depreciation and amortization expenses generated from the four acquisitions completed in 2021, including 1-2-3.tv, Synacor’s Portal and Advertising Business, Christopher & Banks, and TCO. For 2020, the $15,965 increase in depreciation and amortization expenses was primarily related to increased broadcast rights amortization expense.

Restructuring costs

Restructuring costs were $634, $715 and $9,166 for fiscal 2021, fiscal 2020 and fiscal 2019, respectively, representing a decrease of $81 or 11.3% from fiscal 2020 to fiscal 2021 and a decrease of $8,451 or 92.2% from fiscal 2019 to fiscal 2020. These costs in 2021, 2020, and 2019 were all related to our continued organizational optimization of our staffing, policies, and procedures that collectively work together to improve the velocity, quality, and decentralization of decision-making in the organization, to reduce the duplication of organizational effort, and to reduce costs. Fiscal 2019 represented the largest number and most financially impactful of these, which resulted in the most significant restructuring costs.

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Interest expense, net

Interest expense, net was $11,528, $5,234 and $3,760 for fiscal 2021, fiscal 2020 and fiscal 2019, respectively, representing an increase of $6,294 or 120.3% from fiscal 2020 to fiscal 2021 and an increase of $1,474 or 39.2% from fiscal 2019 to fiscal 2020. For 2021, the increase in net interest expense was primarily related to the $2,712 of interest expense on the $80,000 in 8.50% Senior Unsecured Bonds issued to finance the acquisition of 1-2-3.tv in 2021. In addition, we incurred higher interest expense in fiscal 2021 resulting from higher broadcast rights liabilities and higher average senior borrowings under the Siena and GreenLake credit facilities, respectively. For 2020, the increase in net interest expense was primarily related to television broadcast rights liabilities.

Effect of foreign exchange rates

In November of 2021, we acquired a foreign subsidiary, 1-2-3.tv, which reports its financial information in Euros. For the year ended January 29, 2022, we recognized foreign translation adjustments of ($2,428), which is part of other comprehensive income. Below is a summary of changes in foreign exchange rates for fiscal 2021 and 2020:

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The average exchange rate was $1.176 for the year ended January 29, 2022 and $1.151 for the year ended January 30, 2021. Below is a summary of the potential effect of changes in foreign exchange rates on our pro forma financial information for the year ended January 29, 2022 if we had acquired 1-2-3.tv as of the beginning of the fiscal year:

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Income tax provision

Our effective tax rate was (0.5)%, (0.5)% and 0.0%, for years ended January 29, 2022, January 30, 2021 and February 1, 2020. We have not recorded any income tax benefit on the losses recorded during fiscal 2021, 2020 or 2019 due to the uncertainty of realizing income tax benefits in the future as indicated by our recording of an income tax valuation allowance. We will continue to maintain a valuation allowance against our net deferred tax assets, including those related to net operating loss carryforwards, until we believe it is more likely than not that these assets will be realized in the future.

Net Loss Attributable to Shareholders

We had net losses attributable to shareholders of $22,008, $13,234, and $56,296 for the years ended January 29, 2022, January 30, 2021 and February 1, 2020. The change in net loss attributable to shareholders was a result of the above-described fluctuations in our net sales and expenses.

Adjusted EBITDA Reconciliation

To provide investors with additional information regarding our financial results, we also disclose Adjusted EBITDA (as defined below).  Adjusted EBITDA was $41,647, $23,913, and ($18,391) for the years ended January 29, 2022, January 30, 2021 and February 1, 2020.

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The following table provides a reconciliation of the net loss attributable to shareholders to Adjusted EBITDA:

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We have included the term “Adjusted EBITDA” in our reconciliation in order to adequately assess the operating strength and performance of our businesses. The Management team uses this measure to evaluate our business and make decisions about allocating resources to businesses and strategic initiatives. In addition, management uses Adjusted EBITDA as a financial measure to evaluate operating performance under our incentive compensation programs. Adjusted EBITDA should be considered in addition to, but not a substitute for operating income or loss, net income or loss or cash flows from operating activities and other measures as prepared in accordance with GAAP.

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Entertainment net sales increased $33,493 or 7.5% and decreased $50,717 or 10.2% for fiscal 2021 and 2020, respectively. For 2021, the increase in net sales was primarily due to the acquisition of 1-2-3.tv and growth in the Jewelry & Watches and Fashion & Accessories product lines, offset by decreases in Health, Beauty & Wellness, for ShopHQ. For 2020, the decrease in net sales was primarily due to our priority to increase our gross margin by reducing sales of less profitable products, particularly in consumer electronics.

Entertainment gross margin percentage was 40.2%, 36.8% and 32.8% for fiscal 2021, 2020 and 2019, respectively. For 2021, the 341-basis point improvement was primarily attributable to continued price optimization and product mix shift to higher margin rate categories, such as jewelry and watches, fashion, and beauty. For 2020, the 398-basis point increase was also primarily attributable to the gross margin increases due to strategic promotional and pricing initiatives.

Entertainment operating loss was (2.8)%, (1.4)% and (10.0)% for fiscal 2021, 2020, and 2019 respectively. For 2021, the increase in operating loss as a percentage of sales was due to an increase in program distribution expense of $3,090 and an increase in broadcast rights amortization. For 2020, the $43,437 improvement in Operating income was primarily due to margin improvement and cost saving initiatives.

Consumer Brands Segment

The consumer brands segment is comprised of Christopher & Banks (“C&B”), J.W. Hulme Company (“JW”), Cooking with Shaquille O’Neal (“Shaq”), OurGalleria.com and TheCloseout.com (“TCO”). The following table

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summarizes net sales by product category and other information from statements of operations for the consumer brands segment:

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Consumer brands net sales for the consumer brands segment increased $42,192 or 1,958% and decreased $119 or 5.2% for fiscal 2021 and 2020, respectively, when compared to the previous fiscal year. For 2021, the increase in net sales was primarily due to the 2021 acquisitions of C&B and TCO. C&B and TCO contributed approximately 83% and 11%, respectively, of consumer brands net sales for fiscal 2021. eCommerce sales contributed over 91% of the sales growth in fiscal 2021. For 2020, the decrease in net sales was primarily due to the negative impact of COVID-19 on our brick-and-mortar locations, which negatively impacted store sales at JW.

Consumer brands gross margin percentage was 49.5%, 41.5% and 35.0% for fiscal 2021, 2020 and 2019, respectively. For fiscal 2021, the 803-basis point improvement was primarily due to the 2021 acquisition of C&B, which has a standalone gross margin percentage of 54.0%. For fiscal 2020, the 652-basis point increase was primarily the result of continued promotions and pricing initiatives.

Consumer brands operating income (loss) as a percentage of sales was 3.6%, (74.2)%, and (84.8)% for fiscal 2021 and 2020, respectively. The increase in operating income as a percentage of sales in 2021 is primarily attributable to investments made in marketing campaigns and direct-to-consumer catalogs designed to reinvigorate the C&B customer base to drive sales in the near-term and create customer lifetime value through customer reactivation and acquisition. For 2020, we were not able to leverage the fixed operating expenses primarily for JW Hulme, which continues to be a brand that has long-term value.

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Media commerce services net sales increased $21,278 or 324.2% and $3,185 or 94.3% for fiscal 2021 and 2020, respectively, when compared to the previous fiscal year. For 2021, the increase in net sales was primarily due to the acquisition of iMDS (Synacor acquisition), which contributed approximately 79% to sales for fiscal 2021. For 2020, the increase in net sales was primarily due to the acquisition of FL.

Media commerce services gross margin percentage was 29.0%, 34.5% and 1.1% for 2021, 2020 and 2019, respectively. For fiscal 2021, the 541-basis point decrease was primarily due to the shift to lower-margin portal and advertising services through the acquisition of iMDS. For fiscal 2020, the 3,340-basis point increase was primarily the result of growth in the higher-margin OTT service line through the acquisition of FL.

Media commerce services operating income (loss) was 4.2% and (0.8)% of sales for fiscal 2021 and 2020, respectively. For 2021, the increase in operating income as a percentage of sales is primarily due to the acquisition of iMDS. For 2020, labor investments in the business did not deliver anticipated results, which inflated the cost as a percentage of net sales as we were not able to leverage operating expenses in fiscal 2020.

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We used all of the net proceeds from the offering to fund our closing cash payment in connection with the acquisition of 1.2.3.tv Invest GmbH and 1.2.3.tv Holding GmbH and any remaining proceeds for working capital and general corporate purposes, which may include payments related to the acquisition.

The offering was made pursuant to an effective shelf registration statement filed with the Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (the “Securities Act”) on August 5, 2021 and declared effective by the Commission on August 12, 2020 (File No. 333-258519), a base prospectus included as part of the registration statement, and a prospectus supplement, dated September 23, 2021, filed with the SEC pursuant to Rule 424(b) under the Securities Act.

Debt issuance costs, net of amortization, relating to the Notes were $5,925 and $0 as of January 29, 2022, and January 30, 2021, respectively and are included as a direct reduction to the 8.50% Senior Unsecured Notes liability balance within the accompanying consolidated balance sheets. The balance of these costs is being expensed as additional interest over the five-year term of the 8.50% Senior Unsecured Notes.

Siena Credit Facility

On July 30, 2021, we and certain of our subsidiaries, as borrowers, entered into a loan and security agreement (as amended through September 20, 2021, the “Loan Agreement”) with Siena Lending Group LLC and the other lenders party thereto from time to time, Siena Lending Group LLC, as agent (the “Agent”), and certain additional of our subsidiaries, as guarantors thereunder. The Loan Agreement has a three-year term and provides for up to a $80,000 revolving line of credit. Subject to certain conditions, the Loan Agreement also provides for the issuance of letters of credit in an aggregate amount up to $5,000 which, upon issuance, would be deemed advances under the revolving line of credit. Proceeds of borrowings were used to refinance all indebtedness owing to PNC Bank, National Association, to pay the fees, costs, and expenses incurred in connection with the Loan Agreement and the transactions contemplated thereby, for working capital purposes, and for such other purposes as specifically permitted pursuant to the terms of the Loan Agreement. Our obligations under the Loan Agreement are secured by substantially all of our assets and the assets of our subsidiaries as further described in the Loan Agreement.

Subject to certain conditions, borrowings under the Loan Agreement bear interest at 4.50% plus the London interbank offered rate for deposits in dollars (“LIBOR”) for a period of 30 days as published in The Wall Street Journal three business days prior to the first day of each calendar month. There is a floor for LIBOR of 0.50%. If LIBOR is no longer available, a successor rate to be chosen by the Agent in consultation with us or a base rate.

The Loan Agreement contains customary representations and warranties and financial and other covenants and conditions. In addition, the Loan Agreement places restrictions on our ability to incur additional indebtedness or prepay existing indebtedness, to create liens or other encumbrances, to sell or otherwise dispose of assets, to merge or consolidate with other entities, and to make certain restricted payments, including payments of dividends to shareholders. We also pay a monthly fee at a rate equal to 0.50% per annum of the average daily unused amount of the credit facility for the previous month.

As of January 29, 2022, we had total borrowings of $60,216 under our revolving line of credit with Siena. Remaining available capacity under the revolving line of credit as of January 29, 2022 was approximately $11,400, which provided liquidity for working capital and general corporate purposes. As of January 29, 2022, we were in compliance with applicable financial covenants of the Siena Credit Facility and expect to be in compliance with applicable financial covenants over the next twelve months.

Interest expense recorded under the Siena Credit Facility was $1,746 for fiscal 2021.

Deferred financing costs, net of amortization, relating to the revolving line of credit were $2,411 and $0 as of January 29, 2022 and January 30, 2021, respectively and are included within other assets within the accompanying consolidated balance sheets. The balance of these costs is being expensed as additional interest over the three-year term of the Siena Loan Agreement.

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GreenLake Real Property Financing

On July 30, 2021, two of the our subsidiaries, VVI Fulfillment Center, Inc. and EP Properties, LLC (collectively, the “Borrowers”), and us, as guarantor, entered into that certain Promissory Note Secured by Mortgages (the “GreenLake Note”) with GreenLake Real Estate Finance LLC (“GreenLake”) whereby GreenLake agreed to make a secured term loan (the “Term Loan”) to the Borrowers in the original amount of $28,500. The GreenLake Note is secured by, among other things, mortgages encumbering our owned properties in Eden Prairie, Minnesota and Bowling Green, Kentucky (collectively, the “Mortgages”) as well as other assets as described in the GreenLake Note. Proceeds of borrowings shall be used to (i) pay fees and expenses related to the transactions contemplated by the GreenLake Note, (ii) make certain payments approved by GreenLake to third parties, and (iii) provide for our working capital and general corporate purposes.  We has also pledged the stock that we owns in the Borrowers to secure we guarantor obligations.

The GreenLake Note is scheduled to mature on July 31, 2024. The borrowings, which include all amounts advanced under the GreenLake Note, bear interest at 10.00% per annum or, at the election of the Lender upon no less than 30 days prior written notice to the Borrowers, at a floating rate equal to the prime rate plus 200 basis points.

The GreenLake Note contains customary representations and warranties and financial and other covenants and conditions, including, a requirement that the Borrowers comply with all covenants set forth in the Loan Agreement described above. The GreenLake Note also contains certain customary events of default.

As of January 29, 2022, there was $28,500 outstanding under the term loan with GreenLake, all of which was classified as long-term in the accompanying condensed consolidated balance sheet. Principal borrowings under the term loan are non-amortizing over the life of the loan.

Interest expense recorded under the GreenLake Note was $1,793 for the year ended January 29, 2022.

Debt issuance costs, net of amortization, relating to the GreenLake Note were $1,682 and $0 as of January 29, 2022, and January 30, 2021, respectively and are included as direct reductions to the GreenLake Note liability balance within the accompanying consolidated balance sheets. The balance of these costs is being expensed as additional interest over the three-year term of the GreenLake Note.

Seller Notes

On November 5, 2021 the Company issued a $20,800 seller note as a component of consideration for the acquisition of 1-2-3.tv. The seller note is payable annually in two equal installments in November 2022 and November 2023. The seller note bears interest at a rate of 8.50%. $20,062 is outstanding as of January 29, 2022.  Interest expense recorded under the November 5, 2021 seller note was $406 for the year ended January 29, 2022.

On July 30, 2021, the Company issued a $10,000 seller note as a component of consideration for the acquisition of Synacor’s Portal and Advertising business. The seller note is payable in $1,000 quarterly installments, maturing on December 31, 2023. The seller note bears interest at rates between 6% and 11% depending upon the period outstanding. $8,000 is outstanding as of January 29, 2022. Interest expense recorded under the July 30, 2021 seller note was $278 for the year ended January 29, 2022.

Public Equity Offerings

On June 9, 2021, we completed a public offering, in which we issued and sold 4,830,918 shares of our common stock at a public offering price of $9.00 per share. After underwriter discounts and commissions and other offering costs, net proceeds from the public offering were approximately $39,955. We have used or intend to use the proceeds for general working capital purposes, including potential acquisitions of businesses and assets that are complementary to our operations.

On February 18, 2021, we completed a public offering, in which we issued and sold 3,289,000 shares of our common stock at a public offering price of $7.00 per share, including 429,000 shares sold upon the exercise of the underwriter’s option to purchase additional shares. After underwriter discounts and commissions and other offering costs, net proceeds from the public offering were approximately $21,224. We used the proceeds for general working capital purposes.

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On August 28, 2020, we completed a public offering, in which we issued and sold 2,760,000 shares of our common stock at a public offering price of $6.25 per share, including 360,000 shares sold upon the exercise of the underwriter’s option to purchase additional shares. After underwriter discounts and commissions and other offering costs, net proceeds from the public offering were approximately $15,833. We used the proceeds for general working capital purposes.

Private Placement Securities Purchase Agreement

On April 14, 2020, we entered into a common stock and warrant purchase agreement with certain individuals and entities, pursuant to which we sold an aggregate of 1,836,314 shares of our common stock, issued warrants to purchase an aggregate of 979,190 shares of our common stock at a price of $2.66 per share, and fully-paid warrants to purchase an aggregate 114,698 shares of our common stock at a price of $0.001 per share in a private placement, for an aggregate cash purchase price of $4,000. The initial closing occurred on April 17, 2020 and we received gross proceeds of $1,500. Additional closings occurred on May 22, 2020, June 8, 2020, June 12, 2020 and July 11, 2020 and we received gross proceeds of $2,500. We incurred approximately $190 of issuance costs during the first half of fiscal 2020. The Warrants are indexed to our publicly traded stock and were classified as equity. The par value of the shares issued was recorded within common stock, with the remainder of the proceeds, less issuance costs, recorded as additional paid in capital in the accompanying condensed consolidated balance sheets. We used the proceeds for general working capital purposes.

The purchasers consisted of the following: Invicta Media Investments, LLC, Michael and Leah Friedman and Hacienda Jackson LLC. Invicta Media Investments, LLC is owned by Invicta Watch Company of America, Inc. (“IWCA”), which is the designer and manufacturer of Invicta-branded watches and watch accessories, one of our largest and longest tenured brands. Michael and Leah Friedman are owners and officers of Sterling Time, LLC (“Sterling Time”), which is the exclusive distributor of IWCA’s watches and watch accessories for television home shopping and our long-time vendor. IWCA is owned by our Vice Chair and director, Eyal Lalo, and Michael Friedman also serves as one of our directors. A description of the relationship between us, IWCA and Sterling Time is contained in Note 19 – “Related Party Transactions.” Further, Invicta Media Investments, LLC and Michael and Leah Friedman comprise a “group” of investors within the meaning of Section 13(d)(3) of the Securities and Exchange Act of 1934, as amended, that is our largest shareholder.

The warrants have an exercise price per share of $2.66 and are exercisable at any time and from time to time from six months following their issuance date until April 14, 2025. We have included a blocker provision in the purchase agreement whereby no purchaser may be issued shares of our common stock if the purchaser would own over 19.999% of our outstanding common stock and, to the extent a purchaser in this offering would own over 19.999% of our outstanding common stock, that purchaser will receive fully-paid warrants (in contrast to the coverage warrants that will be issued in this transaction, as described above) in lieu of the shares that would place such holder’s ownership over 19.999%. Further, we included a similar blocker in the warrants (and amended the warrants purchased by the purchasers on May 2, 2019, if any) whereby no purchaser of the warrants may exercise a warrant if the holder would own over 19.999% of our outstanding common stock.

Other

Our ValuePay program is an installment payment program offered to customers in our entertainment and consumer brands reporting segments, which allows customers to pay by credit card for certain merchandise in two or more equal monthly installments with no interest charge. As of January 29, 2022, we had approximately $47,008 of net receivables due from customers under the ValuePay program. A source of near-term liquidity is our ability to increase our cash flow resources by reducing the percentage of our sales offered under our ValuePay installment program or by decreasing the length of time we extend credit to our customers under this installment program. However, any such change to the terms of our ValuePay installment program could impact future sales, particularly for products sold with higher price points. The customer demand for “buy now pay later” options has created a competitive platform for third-party providers to develop and offer favorable “buy now pay later” payments options for consumers that could potentially benefit retailers. Those benefits include; sales growth, immediate cash flow to the retailer and reduction/elimination in collection risk. The risk of payment and working capital requirements, could potentially reside with the third-party providers. Please see “Cash Requirements” below for a discussion of our ValuePay installment program.

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Cash Requirements

Currently, our principal cash requirements are to fund our business operations and to fund our debt service. We closely manage our cash resources and our working capital.  In our entertainment and consumer brands segments, we attempt to manage our inventory receipts and reorders in order to ensure our inventory investment levels remain commensurate with our current sales trends. We also monitor the collection of our credit card and ValuePay installment receivables and manage our vendor payment terms in order to more effectively manage our working capital which includes matching cash receipts from our customers to the extent possible, with related cash payments to our vendors. ValuePay remains a cost-effective promotional tool for us. We continue to make strategic use of our ValuePay program in an effort to increase sales and to respond to similar competitive programs.

Our ability to fund operations, debt service and capital expenditures in the future will be dependent on our ability to generate cash flow from operations, maintain margins and to use available funds from our Siena Loan Agreement. Our ability to borrow funds is dependent on our ability to maintain an adequate borrowing base, and our ability to meet our credit facility’s covenants. Accordingly, if we do not generate sufficient cash flow from operations to fund our working capital needs, debt service payments and planned capital expenditures and meet credit facility covenants, and our cash reserves are depleted, we may need to take actions that are within our control, such as further reductions or delays in capital investments, additional reductions to our workforce, reducing or delaying strategic investments or other actions. We believe our existing cash balances and our availability under the Siena Loan Agreement, will be sufficient to fund our normal business operations over the next twelve months from the issuance of this report.

Our entertainment segment brands like ShopHQ and 1-2-3.tv have significant future commitments for our cash, primarily payments for cable and satellite program distribution obligations and the eventual repayment of our credit facility. As of January 29, 2022, we had total contractual cash obligations and commitments primarily with respect to our cable and satellite agreements, credit facility, operating leases, and finance lease payments totaling approximately $407,900 coming due over the next five fiscal years.

For fiscal 2021, net cash used for operating activities totaled $49,976 compared to net cash provided by operating activities of $6,231 in fiscal 2020 and net cash used for operating activities of $6,157 in fiscal 2019. Net cash used by operating activities for fiscal 2021 reflects a net loss, as adjusted for depreciation and amortization, share-based payment compensation, payments for television distribution rights, amortization of deferred financing costs and loss on debt extinguishment. In addition, net cash used for operating activities for fiscal 2021 reflects increases in inventories, accounts receivable, and prepaid expenses and other, and a decrease in deferred revenue and accounts payable and accrued liabilities. Inventories increased primarily as a result of the growth of inventory to support the Christopher and Banks business and additional inventory purchases made within the entertainment segment during Q3 to ensure we were not negatively impacted by logistic delays during our Q4.

For fiscal 2020, net cash provided by operating activities totaled $6,231 compared to net cash used for operating activities of $6,157 in fiscal 2019. Net cash provided by operating activities for fiscal 2020 reflects a net loss, as adjusted for depreciation and amortization, share-based payment compensation, payments for television distribution rights and amortization of deferred financing costs. In addition, net cash provided by operating activities for fiscal 2020 reflects decreases in inventories, accounts receivable and prepaid expenses, and an increase in deferred revenue; partially offset by decreases in accounts payable and accrued liabilities. Inventories decreased primarily as a result of disciplined management of overall working capital components commensurate with sales. Accounts receivable decreased primarily due to lower sales levels, as well as a slight decrease in the utilization of our ValuePay installment program. Accounts payable and accrued liabilities decreased during the first nine months of fiscal 2020 primarily due to a decrease in inventory payables as a result of lower inventory levels and timing of payments to vendors, a decrease in accrued severance resulting from our 2019 cost optimization initiative and 2019 executive and management transition, and a decrease in accrued cable distribution fees.

Net cash used for investing activities totaled $116,448 for fiscal 2021 compared to net cash used for investing activities of $4,892 for fiscal 2020. Net cash used for investing activities included expenditures for business acquisitions totaling $100,411 in fiscal 2021 and $0 in fiscal 2020.  The 2021 expenditures for business acquisitions included $76,911 net, for 1-2-3.tv, $20,000 for Synacor’s Ad and Portal business, and $3,500 for Christopher & Banks.  Expenditures for property and equipment were $10,037 in fiscal 2021 compared to $4,892 in fiscal 2020. The increase in capital expenditures in fiscal 2021 compared to fiscal 2020 primarily related to expenditures made for building improvements made at our Eden

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Prairie facility. Additional capital expenditures made during the periods presented relate primarily to the development, upgrade and replacement of computer software, order management, merchandising and warehouse management systems, related computer equipment, digital broadcasting equipment, and other office equipment, warehouse equipment and production equipment. Principal future capital expenditures are expected to include: the development, upgrade and replacement of various enterprise software systems; equipment improvements and technology upgrades at our distribution facility in Bowling Green, Kentucky; security upgrades to our information technology; and related computer and other equipment associated with the expansion of our entertainment, consumer brands and media commerce services business segments. During fiscal 2021, we also provided a cash deposit of $6,000 to a vendor to be used as working capital pursuant to a related exclusivity agreement.

Net cash used for investing activities totaled $4,892 for fiscal 2020 compared to net cash used for investing activities of $7,784 for fiscal 2019. Expenditures for property and equipment were $4,892 in fiscal 2020 compared to $7,146 in fiscal 2019. The decrease in capital expenditures in fiscal 2020 compared to fiscal 2019 primarily related to expenditures made for the upgrades in our customer service call routing technology during fiscal 2019. Additional capital expenditures made during the periods presented relate primarily to the development, upgrade and replacement of computer software, order management, merchandising and warehouse management systems, related computer equipment, digital broadcasting equipment, and other office equipment, warehouse equipment and production equipment.

Net cash provided by financing activities totaled $162,610 in fiscal 2021 and related primarily to proceeds from the issuance of 8.50% Senior Unsecured Notes of $80,000, PNC and Siena revolving loans of $96,952, proceeds from the issuance of common stock of $61,877 and proceeds from the issuance of the GreenLake Term Loan of $28,500. These cash proceeds were offset by principal payments on the PNC and Siena revolving loans of $77,736, principal payments on our PNC term loan of $12,440, payments for debt issuance costs of $11,191, payments on seller notes of $2,000, payments for debt extinguishment costs of $405, finance lease payments of $86 and tax payments for restricted stock unit issuances of $202.

Net cash provided by financing activities totaled $3,859 in fiscal 2020 and related primarily to proceeds from our PNC revolving loan of $26,400 and proceeds from the issuance of common stock and warrants of $20,043, offset by principal payments on the PNC revolving loan of $39,300, principal payments on our PNC term loan of $2,714, final payments related to our fiscal 2019 business acquisitions of $238, payments for common stock issuance costs of $216, finance lease payments of $103 and tax payments for restricted stock unit issuances of $13. Net cash provided by financing activities totaled $3,293 in fiscal 2019 and related primarily to proceeds from our PNC revolving loan of $188,100 and proceeds from the issuance of common stock and warrants of $6,000, offset by principal payments on the PNC revolving loan of $188,100, principal payments on our PNC term loan of $2,488, payments for common stock issuance costs of $109, finance lease payments of $71 and tax payments for restricted stock unit issuances of $39.

Financial Covenants

The Loan Agreement contains customary representations and warranties and financial and other covenants and conditions, including, among other things, minimum liquidity requirements. The Loan Agreement also requires we maintain a maximum senior net leverage ratios for each quarter. In addition, the Loan Agreement places restrictions on our ability to incur additional indebtedness or prepay existing indebtedness, to create liens or other encumbrances, to sell or otherwise dispose of assets, to merge or consolidate with other entities, and to make certain restricted payments, including payments of dividends to shareholders.

Critical Accounting Estimates

Management’s Discussion and Analysis of Financial Condition and Results of Operations discusses our consolidated financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States of America. The preparation of these financial statements requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting periods. On an on-going basis, we evaluate our estimates and assumptions, including those related to the realizability of accounts receivable, inventory and product returns. We base our estimates and assumptions on historical experience and on various other factors that are believed to be reasonable under the circumstances, the results of which form the basis for making judgments about

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the carrying values of assets and liabilities that are not readily apparent from other sources. There can be no assurance that actual results will not differ from these estimates under different assumptions or conditions.

Management believes the following critical accounting policies estimates affect the more significant assumptions and estimates used in the preparation of the consolidated financial statements:

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percentages, the Company evaluates a number of factors including its historical write off experience, the specific merchandise categories affected, its historic recovery percentages on various methods of liquidations, and return to vendor contract rights, as well as forecasts of future planned receipts, inventory levels, and product airings. Inventories, net, and the inventory obsolescence reserve at January 29, 2022, totaled $116.3 million and $8.9 million, respectively.  

Given the significant judgments necessary to identify and record the inventory reserve timely, performing audit procedures to evaluate management’s estimates of the net realizable value for the inventory on-hand as of the reporting date involved a high degree of auditor judgment.

How the Critical Audit Matter Was Addressed in the Audit

Our audit procedures related to the inventory obsolescence reserve included the following, among others:

Business Acquisitions – Refer to Note 13 to the Financial Statements

Critical Audit Matter Description

The Company completed four acquisitions during the year ended January 29, 2022 for an aggregate purchase price of approximately $146.0 million. The Company accounted for the acquisitions under the acquisition method of accounting for business combinations. Accordingly, the purchase price was allocated to the assets acquired and liabilities assumed based on their respective fair values, including customer lists and relationship intangible assets of $8.5 million, trademark and trade names intangible assets of $13.3 million, and technology assets of $5.9 million, for total intangible assets recognized of $27.7 million. The fair value determination of the intangible assets required management to make significant estimates and assumptions related to future cash flows and selection of the discount rates and royalty rates.

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We identified the fair value determination of the trade name intangible asset of 1-2-3.tv as a critical audit matter because of the significant estimates and assumptions management makes to determine the fair value of this asset. This required a high degree of auditor judgment and an increased extent of effort, including the need to involve our fair value specialists, when performing audit procedures to evaluate the reasonableness of management’s forecast of the net revenue attributable to the trade name and the selection of the royalty rate used in the determination of the initial fair value of the trade name intangible asset.

How the Critical Audit Matter Was Addressed in the Audit

Our audit procedures related to the forecast of net revenue attributable to the trade name and the selection of the royalty rate for the trade name intangible asset included the following, among others:

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/s/  DELOITTE & TOUCHE LLP

Minneapolis, Minnesota

April 29, 2022

We have served as the Company’s auditor since 2002

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will not be prevented or detected on a timely basis. The following material weaknesses have been identified and included in in the accompanying Management’s Annual Report on Internal Control Over Financial Reporting:

The following were contributing factors to the material weaknesses in information and communication:

These material weaknesses were considered in determining the nature, timing, and extent of audit tests applied in our audit of the consolidated financial statements as of and for the year ended January 29, 2022, of the Company, and this report does not affect our report on such financial statements.

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/s/ DELOITTE & TOUCHE LLP

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Minneapolis, Minnesota

April 29, 2022

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iMEDIA BRANDS, INC. AND SUBSIDIARIES