10-K
1
lifeway_10k-123120.htm
ANNUAL REPORT
Table
of Contents
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-K
☒ ANNUAL REPORT PURSUANT TO
SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended
December 31, 2020
or
☐ TRANSITION REPORT PURSUANT TO
SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from
_____________ to _____________
Commission file number: 000-17363
LIFEWAY
FOODS, INC.
(Name of registrant as specified in its
charter)
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
6431 West Oakton St., Morton Grove, Illinois
60053
(Address of principal executive offices)
(Zip Code)
(847) 967-1010
(Registrant’s telephone number,
including area code)
Securities registered under Section 12(b)
of the Exchange Act:
Title of Each Class Trading Symbol Name of each exchange on which registered
Common Stock, No Par Value LWAY Nasdaq Global Market
Securities registered under Section 12(g)
of the Exchange 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 o No
þ
Indicate by check mark if the registrant
is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes o
No þ
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 þ No o
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 þ No o
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting 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. Yes ☐ No ☒
Indicate by check mark whether the registrant
is a shell company (as defined in Rule 12b-2 of the Act). Yes o No þ
The aggregate market value of the voting
and non-voting common equity held by non-affiliates computed by reference to the price at which the stock was last sold as of June
30, 2020 ($2.28 per share as quoted on the Nasdaq Global Market) was $9,390,506.
As of March 15, 2021, 15,604,480 shares
of the registrant’s common stock, no par value, were outstanding.
Portions of the Registrant’s Proxy
Statement for the Annual Meeting of Shareholders to be held on June 18, 2021, are incorporated by reference into Part III.
Table of Contents
Page
PART I
Item 1. Business 1
Item 1A. Risk Factors 8
Item 1B. Unresolved Staff Comments 16
Item 2. Properties 17
Item 3. Legal Proceedings 17
Item 4. Mine Safety Disclosures 17
PART II
Item 6. Selected Financial Data 19
Item 7A. Quantitative and Qualitative Disclosures about Market Risk 26
Item 8. Financial Statements and Supplementary Data 26
Item 9A. Controls and Procedures 27
Item 9B. Other Information 28
PART III
Item 10. Directors, Executive Officers and Corporate Governance 29
Item 11. Executive Compensation 29
Item 14. Principal Accountant Fees and Services 29
PART IV
Item 15. Exhibits, Financial Statement Schedules 30
Signatures 32
i
FORWARD LOOKING STATEMENTS
In connection with the “safe harbor”
provisions of the Private Securities Litigation Reform Act of 1995, readers are advised that this document, any document incorporated
by reference herein, and other documents we file with the SEC, contain forward looking statements. In addition, we, or others on
our behalf, may make forward looking statements in press releases or written statements, or in our communications and discussions
with investors and analysts in the normal course of business through meetings, webcasts, phone calls, and conference calls. Forward
looking statements are subject to certain risks and uncertainties, which could cause actual results to differ materially from those
indicated by the forward looking statements. These statements use words, variations of words, and negatives of words such as "may,"
"could," "believe," "future," "depend," "expect," "will," "result,"
"can," "remain," "assurance," "subject to," "require," "limit," "impose,"
"guarantee," "restrict," "continue," "become," "predict," "likely,"
"opportunities," "effect," "change," "future," "predict," and "estimate."
Examples of forward looking statements include, but are not limited to, (i) projections of revenues, income or loss, earnings or
losses per share, capital expenditures, dividends, capital structure and other financial items, (ii) statements of Lifeway Foods,
Inc.’s (the “Company”, “Lifeway”, “we”, or “our”) plans and objectives, including
the introduction of new products, or estimates or predictions of actions by customers, suppliers, competitors or regulatory authorities,
(iii) statements of future economic performance, and (iv) statements of assumptions underlying other statements and statements
about Lifeway or its business.
These forward looking statements are based
on management’s beliefs, assumptions, estimates and observations of future events based on information available to our management
at the time the statements are made and include any statements that do not relate to any historical or current fact. These statements
are not guarantees of future performance and they involve certain risks, uncertainties and assumptions that are difficult to predict.
Actual outcomes and results may differ materially from what is expressed, implied or forecast by our forward looking statements
due in part to the risks, uncertainties, and assumptions that include
· the decisions of customers or consumers;
· our ability to successfully implement our business strategy;
· changes in the pricing of commodities;
· the effects of government regulation;
These factors are not necessarily all of
the important factors that could cause actual results to differ materially from those expressed in any of our forward looking statements.
Other unknown or unpredictable factors could also have material adverse effects on future results. We intend these forward looking
statements to speak only at the date made. Except as otherwise required to be disclosed in periodic reports required to be filed
by public companies with the Securities and Exchange Commission (“SEC”) pursuant to the SEC’s rules, we have
no duty to update these statements, and we undertake no obligation to publicly update or revise any forward looking statements,
whether as a result of new information, future events or otherwise.
ii
PART I
ITEM 1 BUSINESS
OVERVIEW
Lifeway was founded in 1986 by Michael
and Ludmila Smolyansky shortly after their emigration from Russia to the United States. Mr. and Mrs. Smolyansky were the first
to successfully introduce kefir to the U.S. consumer on a commercial scale, initially catering to ethnic consumers in the Chicago,
Illinois metropolitan area. In the over thirty years that have followed, Lifeway has grown to become the largest producer and marketer
of kefir in the U.S. and an important player in the broader market spaces of probiotic-based products and natural, “better
for you” foods.
PRODUCTS
Our primary product is drinkable kefir,
a cultured dairy product. Lifeway Kefir is tart and tangy, high in protein, calcium and vitamin D. Thanks to our exclusive blend
of kefir cultures, each cup of kefir contains 12 live and active cultures and 25 to 30 billion beneficial CFU (Colony Forming Units)
at the time of manufacture.
We manufacture (directly or through co-packers)
and market products under the Lifeway and Fresh Made brand names, as well as under private labels on behalf of certain customers.
Our product categories are:
· ProBugs, a line of kefir products designed for children.
· Frozen Kefir, available in both soft serve and pint-size containers.
Net sales of products by category were
as follows for the years ended December 31:
In thousands $ % $ %
(a) Includes Lifeway Kefir Shop sales
Product innovation and new product
development
Lifeway is committed to maintaining its
positions as the leading producer of kefir and a recognized leader in the market for probiotic products. We routinely evaluate
opportunities for new product flavors and formulations, improved package design, new product configurations and other innovation
opportunities. Beyond our core drinkable kefir products, we have an ongoing effort to extend the strength of the Lifeway brand
and leverage the capabilities of the Lifeway organization into categories both inside and outside of the dairy aisle, including
into non-food categories and into additional channels, such as gyms and fitness studios. In 2020, we maintained the level of focus
on product innovations, packaging innovations, and growth opportunities. These product innovation and development efforts have
led to additional revenue opportunities from Plantiful and Kefir minis.
Lifeway considers research and development
of new products to be a significant part of our overall business philosophy. Where possible, we leverage our existing staff and
facilities to conduct our innovation, research, and development efforts, rather than maintaining a dedicated research and development
staff and facilities or relying solely on third parties. In 2020, in light of the Covid-19 outbreak, and our focus was on expanding
sales of our current products, and less on new product development.
PRODUCTION
Manufacturing
During 2020 and 2019, approximately 99%
of our revenue was derived from products manufactured at our own facilities. We currently operate the following manufacturing and
distribution facilities:
We own these manufacturing facilities,
and all our fixed assets associated with manufacturing, storage, and distribution of our products are located in the United States.
Co-Packers
In addition to the products manufactured
in our own facilities, independent manufacturers (“co-packers”) manufacture some of our products. We have co-packer
agreements to manufacture drinkable and frozen kefir in Ireland and the United Kingdom, respectively, to serve our European markets.
During 2020 and 2019, approximately 1% of our revenue was derived from products manufactured by co-packers. Our co-packers
are audited regularly by our staff and are required to follow our specifications and Good Manufacturing Practices (GMPs). Additionally,
the co-packers are required to ensure our products are manufactured in accordance with our quality and safety specifications and
that they are compliant with all applicable laws and regulations.
SALES AND DISTRIBUTION
Sales Organization
We sell our products primarily through
our direct sales force, brokers, and distributors. Our sales organization strives to cultivate strong, collaborative relationships
with our customers that facilitate favorable shelf placement for our products, which we believe will drive sales volumes when combined
with our marketing efforts and our brand strength. Our relationships with food brokers provide additional retail customer coverage
as a supplement to our direct sales force.
Distribution inside the United
States
Lifeway’s products reach the consumer
through four primary “route-to-market” pathways:
· Retail-direct;
· Distributor;
· Direct store delivery (“DSD”);
· Retail sales.
Under the retail-direct channel, we sell
our products to the retailer that either the retailer’s carrier picks up or Lifeway ships through third party carriers for
delivery to those retailers’ distribution centers. In turn, our retailers then deliver the products to their respective stores.
Customers in this route-to-market grouping include Kroger, Walmart and Trader Joe’s. Under the retail direct model, optimal
product merchandising, assortments and product presentation are attended to by the retailer with limited support from Lifeway’s
broker network. Sales to our retail-direct customers represent approximately 45% of our total net sales for the year ended 2020.
Under the distributor channel, we sell
our products to distributors that either the distributor’s carrier picks up or Lifeway ships through third party carriers
for delivery to those distributors’ designated warehouses. In turn, our distributors then sell and ship our products to their
retail customers. Our distributors often use a DSD model of their own to make deliveries directly to individual stores, but they
also make deliveries to retailers’ distribution centers. Our distributor customers include United Natural Foods (UNFI), KeHE
Distributors, and C&S Wholesale Grocers. The distributor attends to optimal product merchandising, assortments, and product
presentations at the retail end of the channel, with support from Lifeway’s direct sales force and broker network. Sales
to our distributor customers represent approximately 50% of our total net sales for year ended 2020.
Under the direct store delivery (DSD) route
to market, we distribute our products directly to the retailer using Company-owned vehicles and a team of Lifeway merchandisers
who engage face-to-face with store management to ensure optimal product assortments and presentations. We operate our DSD model
in the Chicago, Illinois metropolitan area only. Sales to our DSD customers represent approximately 3% of our total net sales for
the year ended 2020.
In the Chicago, Illinois metropolitan area,
Lifeway operates two retail stores and a food truck under its Lifeway Kefir Shop subsidiary. The Lifeway Kefir Shop sells its frozen
and drinkable kefir products, as well as certain Lifeway products, through these retail outlets. Sales through these retail outlets
represented less than 1% of net sales for the year ended 2020.
Distribution outside of the U.S.
Substantially all of Lifeway’s products
are distributed within the United States; however, certain of our distributors sell our products to retailers in Mexico and portions
of South America and the Caribbean. Additionally, Lifeway products reach consumers in the United Kingdom, Ireland, Norway, Sweden,
and the Middle East under third party co-manufacturing agreements and in-country broker and distributor arrangements. Sales outside
the United States represents approximately 2% of net sales for the year ended 2020.
Channel- and Market-Specific Distribution and Broker
Representation Arrangements
Lifeway’s generally standardized
agreements with independent distributors and food brokers allow us the latitude to establish new relationships as the opportunities
and needs arise. Where appropriate given the relationship, market, and business opportunity, we offer exclusive channels, markets,
and/or territories to our distributors and brokers.
We provide our independent distributors
with products at wholesale prices for distribution to their retail accounts. Lifeway believes that the prices at which we sell
our products to distributors are competitive with the prices generally paid by distributors for similar products in the markets
served. Due to the perishable nature of our products and the costs associated with moving product back through the channel, we
do not offer return privileges to any of our distributors or channel customers; however, from time to time we do provide our customers
with allowances for non-saleable product.
Lifeway engages independent food brokers
generally on a commission basis, subject in some cases to a minimum commission guarantee. The commissions vary based on the scope
of services provided and customers served. Our brokers represent our products to a variety of prospective buyers. These buyers
could be specialty stores, retail grocery chains, wholesalers, foodservice operators and distributors, drug chains, mass merchandisers,
industrial users, schools and universities, or military installations. With support from our direct sales force, brokers may provide
other value-added services. These may include scheduling and coordinating promotions, merchandising, centralized ordering, and
data collection services.
MARKETING
We use a combination of sales incentives,
trade promotions, and consumer promotions to market our products.
Sales Incentives and Trade Promotion
Allowances
Lifeway offers various sales incentives
and trade promotional programs to its retailer and distributor customers from time to time in the normal course of business. These
sales incentives and trade promotion programs typically include rebates, in-store display and demo allowances, allowances for non-saleable
product, coupons, and other trade promotional activities. Trade promotions support price features, displays, and other merchandising
of our products by our retail and distributor customers. We record these arrangements as a reduction to net sales in our consolidated
statements of operations.
Consumer Promotions and Marketing
Campaigns
We engage in an ongoing and wide variety
of marketing and media campaigns - primarily digital and social media, print advertising in some newspapers and magazines, and,
to a lesser extent, targeted television advertising. We complement these marketing and media efforts by sponsoring cultural and
community events, and various festivals, as well as participating in industry-related trade shows and in-store promotional events.
Our consumer marketing efforts also include cooperative advertising programs with our retail customers and various couponing campaigns,
online consumer relationship programs, and other similar forms of promotions.
Our marketing efforts are aimed at stimulating
demand with new and existing consumers by elevating awareness and consumption of kefir and probiotics, as well as enhancing our
brand equity. Our awareness marketing seeks to promote the verifiable nutritional profile, purity, benefits, and good taste of
our kefir.
COMPETITION
Lifeway competes with a limited number
of other domestic kefir producers and consequently faces a small amount of direct competition for kefir products. However, Lifeway’s
kefir-based products compete with other dairy products, notably spoonable and drinkable yogurt, and, increasingly, with non-dairy
probiotic products that incorporate kefir cultures but are not kefir. Many of our competitors are well-established and have significantly
greater financial resources than Lifeway to promote their products.
SUPPLIERS
We purchase our ingredients such as raw
milk, pectin, and fruit purees from unaffiliated suppliers. In addition, we purchase significant quantities of packaging materials
to package our products and natural gas and electricity to operate our facilities. Purchases are made through purchase orders or
contracts, and price, delivery terms, and product specifications vary. Although the prices for our principal inputs can fluctuate
based on economic, weather, and other conditions, Lifeway believes it has ready access to multiple suppliers for all ingredient,
packaging, and other input requirements.
MAJOR CUSTOMERS
During the year ended December 31, 2020,
two customers collectively accounted for approximately 21% of our total net sales.
These customers collectively accounted for approximately 22% of net accounts receivable
as of December 31, 2020.
SEGMENTS
Lifeway has determined that it has one
reportable segment based on how our chief operating decision maker manages the business and in a manner consistent with the internal
reporting provided to the chief operating decision maker. The chief operating decision maker, who is responsible for allocating
resources and assessing Company performance, has been identified collectively as the Chief Financial Officer, the Chief Operating
Officer, the Chief Executive Officer and Chairperson of the board of directors. Substantially all of our consolidated revenues
relate to the sale of cultured dairy products that we produce using the same processes and materials and are sold to consumers
through a common network of distributors and retailers in the United States.
DANONE SA
Since October 1999, Danone SA, through
subsidiaries (collectively “Danone”), has been the beneficial owner of approximately 22% of the outstanding common
stock of Lifeway. Lifeway and Danone are parties to a Stockholders’ Agreement dated October 1, 1999, which as amended provides
Danone the right to designate one director nominee, provides Danone with anti-dilutive rights relating to certain future offerings
and issuances of capital stock, and grants Danone limited registration rights.
INTELLECTUAL PROPERTY
We believe that our rights in our trademarks
and service marks are important to our marketing efforts to develop brand recognition and differentiate our brand from our competitors
and are a valuable part of our business. We own many domestic and international trademarks and service marks. In addition, we own
numerous registered and unregistered copyrights, registered domain names, and proprietary trade secrets, trade dress, technology,
know-how, processes, and other proprietary rights that are not registered. Depending on the jurisdiction, trademarks are generally
valid as long as they are in use and/or their registrations are properly maintained and they have not been found to have become
generic. Registrations of trademarks can also generally be renewed indefinitely as long as the trademarks are in use. We also have
licenses to use certain trademarks inside and outside of the United States and to certain product formulas, all subject to the
terms of the agreements under which such licenses are granted. Lifeway’s policy is to pursue registration of intellectual
property whenever appropriate. We protect our intellectual property rights by relying on a combination of trademark, copyright,
trade dress, trade secret and other intellectual property laws, and domain name dispute resolution systems; as well as licensing
agreements, third-party confidentiality, nondisclosure, and assignment agreements; and by policing third-party misuses of our intellectual
property. We regard the Lifeway family of trademarks and other intellectual property as having substantial value and as being an
important factor in the marketing of our products. The loss of such protection would have a material adverse impact on our operations
and share price.
REGULATION
Lifeway is subject to extensive regulation
by federal, state, and local governmental authorities. In the United States, agencies governing the manufacture, marketing, and
distribution of our products include, among others, the Federal Trade Commission (“FTC”), the United States Food &
Drug Administration (“FDA”), the United States Department of Agriculture (“USDA”), the United States Environmental
Protection Agency (“EPA”), the Occupational Safety and Health Administration (“OSHA”), and their state
and local equivalents. Under various statutes, these agencies prescribe, among other things, the requirements and standards for
quality, safety, and representation of our products to consumers. We are also subject to federal laws and regulations relating
to our products and production. For example, as required by the National Organic Program (“NOP”), we rely on third
parties to certify certain of our products and production locations as organic. Additionally, our facilities are subject to various
laws and regulations regarding the release of material into the environment and the protection of the environment in other ways.
Internationally, we are subject to the
laws and regulatory authorities of the foreign jurisdictions in which we manufacture and sell our products, including the Food
Standards Agency in the United Kingdom; the National Service of Health, Food Safety and Agro-Food Quality (known by its Spanish-language
acronym “SENASICA”) and the Federal Commission for the Protection from Sanitary Risks (“COFEPRIS”) in Mexico;
the Food Safety Authority in Ireland; and the European Food Safety Authority, which supports the European Commission, as well as
individual country, province, state, and local regulations.
MILK INDUSTRY REGULATION
Our primary raw material is conventional
and organic raw milk. The federal government establishes minimum prices for raw milk purchased in federally regulated areas. Some
states have established their own rules for determining minimum prices. The federal government announces prices for raw milk each
month. While we are subject to federal government regulations that establish minimum prices for milk, the prices we pay producers
of organic raw milk are generally well above such minimum prices, as organic milk production is generally costlier, and organic
milk therefore commands a price premium. In addition to the prices for raw milk, we also pay producer (“over-order”)
premiums, federal order administration costs, and other related charges that vary by milk product, location, and supplier.
FOOD SAFETY
Lifeway takes appropriate precautions to
ensure the safety of our products. In addition to routine inspections by state and federal regulatory agencies, including the USDA
and FDA, we have instituted Company-wide quality systems that address topics such as supplier control; ingredient, packaging, and
product specifications; preventive maintenance; pest control; and sanitation. Each of our facilities also has in place a hazard
analysis critical control points (“HACCP”) plan that identifies critical pathways for contaminants and mandates control
measures that must be used to prevent, eliminate or reduce relevant food-borne hazards. To the extent that the federal Food Safety
Modernization Act applies to Lifeway’s business, we develop food safety plans and implement preventive measures to protect
against food contamination. We also maintain a product recall plan, including lot identifiability and traceability measures that
allow us to act quickly to reduce the risk of consumption of any product that we suspect may pose a health issue.
We maintain various types of insurance,
including product liability and product recall coverages, which we believe to be sufficient to cover potential product liabilities.
We have also implemented the Safe Quality
Food (“SQF”) program at most of our facilities. SQF is a fully integrated food safety and quality management protocol
designed specifically for the food sector. The SQF Code, based on universally accepted CODEX Alimentarius, HACCP guidelines and
the Global Food Safety Initiative (“GFSI”) standards, offers a comprehensive methodology to manage food safety and
quality simultaneously. SQF certification provides an independent and external validation that a product, process or service complies
with international, regulatory and other specified standards. Our Waukesha, Morton Grove, and Niles facilities are SQF certified.
SEASONALITY
Lifeway’s business is not seasonal.
EMPLOYEES
As of December 31, 2020, we employed approximately
316 employees, approximately 103 of which were members of a union bargaining unit.
AVAILABLE INFORMATION
Lifeway maintains a corporate website for
investors at www.lifewayfoods.com and it makes available, free of charge, through this website its annual report on Form 10-K,
quarterly reports on Form 10-Q, current reports on Form 8-K, and amendments to those reports that we file with or furnish to the
SEC as soon as reasonably practicable after we electronically file such material with, or furnish it to, the SEC.
ITEM 1A
RISK FACTORS
In evaluating and understanding us and
our business, you should carefully consider the risks described below, in conjunction with all of the other information included
in this Annual Report on Form 10-K, including “Management’s Discussion and Analysis of Financial Condition and Results
of Operations” contained in Part II, Item 7 and “Quantitative and Qualitative Disclosures About Market Risk”
contained in Part II, Item 7A. The risks and uncertainties described below are not the only ones we face. Additional risks and
uncertainties that we are unaware of, or that we currently believe are not material, may become important factors that adversely
affect our business. If any of the events or circumstances described in the following risk factors actually occurs, our business,
financial condition, results of operations, and future prospects could be materially and adversely affected.
RISKS RELATED TO OUR BUSINESS
Our product categories face a high
level of competition, which could negatively impact our sales and results of operations.
We compete with a limited number of other
domestic kefir producers and consequently faces a small amount of direct competition for kefir products. However, our kefir-based
products compete with other dairy products, notably spoonable and drinkable yogurt, and, increasingly, with non-dairy probiotic
products that incorporate kefir cultures but are not kefir. We face significant competition for limited retailer shelf space in
each of our product categories. Competition in our product categories is based on product innovation, product quality, price, brand
recognition and loyalty, effectiveness of marketing, promotional activity, and our ability to identify and satisfy consumer tastes
and preferences. We believe that our brands have benefited in many cases from being the first to introduce products in their categories,
and their success has attracted competition from other food and beverage companies that produce branded products, as well as from
private label competitors. Some of our competitors, such as Danone, General Mills, Chobani, Hain Celestial Group, and Nestle, have
substantial financial and marketing resources. These competitors and others may be able to introduce innovative products more quickly
or market their products more successfully than we can, which could cause our growth rate to be slower than we anticipate and could
cause sales to decline.
We also compete with producers of non-dairy
products, such as Millennium Products and PepsiCo, that have lower ingredient and production-related costs. As a result, these
competing producers may be able to offer their products to customers at a lower price point. This could cause us to lower our prices,
resulting in lower profitability or, in the alternative, cause us to lose market share if we fail to lower prices. Furthermore,
private label competitors are generally able to sell their products at lower prices because private label products typically have
lower marketing costs than their branded counterparts. If our products fail to compete successfully with other branded or private
label offerings, demand for our products and our sales volumes could be negatively impacted.
Additionally, due to high levels of competition,
certain of our key retailers may demand price concessions on our products or may become more resistant to price increases for our
products. Increased price competition and resistance to price increases have had, and may continue to have, a negative effect on
our results of operations.
We may not be able to successfully implement our business
strategy for our brands on a timely basis or at all.
We believe that our future success depends,
in part, on our ability to implement our strategy of leveraging our existing brands with our current and new products to maintain
our market position in our product categories; drive increased sales; acquire or establish new brands; and create strategic alliances
including potential joint ventures. Our ability to implement this strategy depends, among other things, on our ability to:
· compete successfully in the product categories in which we choose to operate;
· increase our brand recognition and loyalty;
· negotiate acquisitions and joint ventures on terms acceptable to us; and
If we fail to execute these and other important
elements of our business strategy, our business and results of operations could be adversely affected.
One key element of our business strategy
is to introduce timely, new, cost-effective, and appealing products and to innovate successfully within our existing product categories.
However, consumer tastes and preferences change rapidly, and evolve over time. Factors that may affect consumer tastes and preferences
include:
Our future investments may not produce
the results we expect when we expect them for a variety of reasons including those described herein. Our future product development
and innovation will be reliant on our ability to identify and develop potential new growth opportunities. This process is inherently
risky and will result in investments of substantial time and resources for which we may not achieve any return or value. Successful
product development and innovation is also affected by our ability to launch new or improved products successfully and on a timely
and cost-effective basis.
We may have to pay cash, incur debt, or
issue equity, equity-linked, or debt securities to fund our business strategy, or may be unable to fund that strategy. Any of these
events could adversely affect our financial results and our business. We could experience similar effects if we invest resources
in a strategy that ultimately proves unsuccessful. If, due to a failure of our strategy or any other reason, consumer demand
for our products declines, our sales volumes, results of operations, and our business could be negatively affected, and we may
not be able to create or sustain growth or successfully implement our business strategy.
Interruption of our supply chain could affect our
ability to manufacture or distribute products, could adversely affect our business and sales, and/or could increase our operating
costs and capital expenditures.
We have several supply agreements with
suppliers and co-packers that require them to provide us with specific finished goods, including packaging and kefir. For some
of these products, we essentially rely on a single supplier or co-packer as our sole source for the item. The failure for any reason
of any such sole source or other co-packer to fulfill its obligations under the applicable agreements with us or the termination
or renegotiation of any such sourcing agreement could result in disruptions to our supply of finished goods and have an adverse
effect on our results of operations. Additionally, our suppliers and co-packers are subject to risk, including labor disputes,
union organizing activities, financial liquidity, inclement weather, natural disasters, supply constraints, and general economic
and political conditions that could limit their ability to timely provide us with acceptable products, which could disrupt our
supply of finished goods, or require that we incur additional expense by providing financial accommodations to the supplier or
co-packer or taking other steps to seek to minimize or avoid supply disruption, such as establishing new arrangements with other
providers. A new arrangement may not be available on terms as favorable to us as our existing arrangements, if at all.
Our inability to maintain sufficient internal
capacity or establish satisfactory co-packing, warehousing and distribution arrangements could limit our ability to operate our
business or implement our strategic plan and could negatively affect our sales volumes and results of operations.
Disruption of our manufacturing or
distribution chains or information technology systems, including disruption due to cybersecurity threats, could adversely affect
our business.
The success of our business depends, in
part, on maintaining a strong production platform and we rely primarily on internal production resources to fulfill our manufacturing
needs. Our ongoing initiatives to expand our production platform and our productive capacity could fail to achieve such objectives
and, in any case, could increase our operating costs beyond our expectations and could require significant additional capital expenditures.
If we cannot maintain sufficient production, warehousing, and distribution capacity, either internally or through third party agreements,
we may be unable to meet customer demand and/or our manufacturing, distribution, and warehousing costs may increase, which could
negatively affect our business.
Furthermore, damage or disruption to our
manufacturing or distribution capabilities due to weather, natural disaster, fire, environmental incident, terrorism, cybersecurity
threats and other security breaches, pandemic, strikes, the financial or operational instability of key distributors, warehousing,
and transportation providers, or other reasons could impair our ability to manufacture or distribute our products.
We rely on a limited number of production
and distribution facilities. A disruption in operations at any of these facilities or any other disruption in our supply chain
relating to common carriers, supply of raw materials and finished goods, or otherwise, whether as a result of casualty, natural
disaster, power loss, telecommunications failure, cybersecurity threat, terrorism, labor shortages, contractual disputes or other
causes, could significantly impair our ability to operate our business and adversely affect our relationship with our customers.
Furthermore, our insurance coverage may not be adequate to cover all related costs.
Our information technology systems are
also critical to the operation of our business and essential to our ability to successfully perform day-to-day operations. These
systems include, without limitation, networks, applications, and outsourced services in connection with the operation of our business.
A failure of our information technology systems to perform as we anticipate could disrupt our business and result in transaction
errors, processing inefficiencies, and sales losses, causing our business to suffer. In addition, our information technology systems
may be vulnerable to damage or interruption from circumstances beyond our control, including fire, natural disasters, systems failures,
and cybersecurity threats. Cybersecurity threats in particular are persistent, evolve quickly and include, without limitation,
computer viruses, unauthorized attempts to access information, denial of service attacks, and other electronic security breaches.
Like our customers, suppliers, subcontractors and other third parties with whom we do business generally, we expect that we will
continue to be the subject of cybersecurity threats. In some cases we must rely on the safeguards put in place by the third parties
with whom we do business to protect against security threats. We believe we have implemented appropriate measures and controls
and have invested in sufficient resources to appropriately identify and monitor these threats and mitigate potential risks, including
risks involving our customers and suppliers. However, there can be no assurance that any such actions will be sufficient to prevent
cybersecurity breaches, disruptions to mission critical systems, the unauthorized release of sensitive information or corruption
of data, or harm to facilities or personnel.
These threats and other events could disrupt
our operations, or the operations of our customers, suppliers, subcontractors and other third parties; could require significant
management attention and resources; could result in the loss of business, regulatory actions and potential liability; and could
negatively impact our reputation among our customers and the public. Any of these outcomes could have a negative impact on our
financial condition, results of operations, or liquidity.
Our debt and financial obligations
could adversely affect our financial condition, our ability to obtain future financing, and our ability to operate our business.
We have outstanding debt obligations that
could adversely affect our financial condition and limit our ability to successfully implement our business strategy. Furthermore,
from time to time, we may need additional financing to support our business and pursue our business strategy, including strategic
acquisitions. Our ability to obtain additional financing, if and when required, will depend on investor demand, our operating performance,
the condition of the capital markets, and other factors. We cannot assure that additional financing will be available to us on
favorable terms when required, or at all. If we raise additional funds through the issuance of equity, equity-linked, or debt securities,
those securities may have rights, preferences, or privileges senior to those of our common stock, and, in the case of equity and
equity-linked securities, our existing stockholders may experience dilution.
As of December 31, 2020, we had outstanding
borrowings of $2,768, net of $9 of unamortized deferred financing costs, which consisted of a revolving line of credit. Our loan
agreements contain certain restrictions and requirements that among other things:
· impose on us financial and operational restrictions.
Our ability to meet our debt service
obligations will depend on our future performance, which will be affected by the other risk factors described in this Annual Report
on Form 10-K. If we do not generate enough cash flow to pay our debt service obligations, we may be required to refinance all
or part of our existing debt, sell our assets, borrow more money or raise equity. There is no guarantee that we will be able to
take any of these actions on a timely basis, on terms satisfactory to us, or at all.
Our notes bear interest at variable rates.
If market interest rates increase, it will increase our debt service requirements, which could adversely affect our cash flow.
Our loan agreements also contain provisions that restrict our
ability to:
· borrow money or guarantee debt;
· create liens;
· make specified types of investments and acquisitions;
· pay dividends on or redeem or repurchase stock;
· enter into new lines of business;
· enter into transactions with affiliates; and
· sell assets or merge with other companies.
These restrictions on the operation of
our business could harm our ability to execute on our business strategy by, among other things, limiting our ability to take advantage
of financing, merger and acquisition opportunities, and other corporate opportunities. Various risks, uncertainties, and events
beyond our control could affect our ability to comply with these covenants. Unless cured or waived, a default would permit lenders
to accelerate the maturity of the debt under the credit agreement and to foreclose upon the collateral securing the debt.
Loss of our key management or other
personnel, or an inability to attract such management and other personnel, could negatively impact our business.
We depend on the skills, working relationships,
and continued services of key personnel, including our experienced senior management team. We also depend on our ability to attract
and retain qualified personnel to operate and expand our business. If we lose one or more members of our senior management team,
or if we fail to attract talented new employees, our business and results of operations could be negatively affected.
Employee strikes and other labor-related
disruptions may adversely affect our operations.
We have a union contract governing the
terms and conditions of employment for a significant portion of our workforce. Although we believe union relations since the union’s
certification as the exclusive bargaining representative of this portion of our workforce have been amicable, there is no assurance
that this will continue in the future or that we will not be subject to future union organizing activity. There are potential adverse
effects of labor disputes with our own employees or by others who provide warehousing, transportation, and distribution, both domestic
and foreign, of our raw materials or other products. Strikes or work stoppages or other business interruptions could occur if we
are unable to renew collective bargaining agreements on satisfactory terms or enter into new agreements on satisfactory terms,
which could impair manufacturing and distribution of our products or result in a loss of sales, which could adversely impact our
business, financial condition, or results of operations. The terms and conditions of existing, renegotiated, or new collective
bargaining agreements could also increase our costs or otherwise affect our ability to fully implement future operational changes
to enhance our efficiency or to adapt to changing business needs or strategy.
Our intellectual property rights are valuable, and any
inability to protect them could reduce the value of our products and brands.
We consider our intellectual property rights,
particularly our trademarks, but also our copyrights, registered domain names, and proprietary trade secrets, technology, know-how,
processes and other proprietary rights to be a significant and valuable aspect of our business. We attempt to protect our intellectual
property rights by relying on a combination of trademark, copyright, trade dress, trade secret, and other intellectual property
laws, and domain name dispute resolution systems; as well as licensing agreements, third-party confidentiality, nondisclosure,
and assignment agreements; and by policing third-party misuses of our intellectual property. Our failure to obtain or maintain
adequate protection of our intellectual property rights, or any change in law or other changes that serve to lessen or remove the
current legal protections of our intellectual property, may diminish our competitiveness and could materially harm our business.
We also face the risk of claims that we
have infringed third parties’ intellectual property rights. Any claims of intellectual property infringement, even those
without merit, could be expensive and time consuming to defend, cause us to cease making, licensing, or using products that incorporate
the challenged intellectual property, require us to redesign or rebrand our products or packaging, divert management’s attention
and resources, or require us to enter into royalty or licensing agreements to obtain the right to use a third party’s intellectual
property. Any royalty or licensing agreements, if required, may not be available to us on acceptable terms or at all. Additionally,
a successful claim of infringement against us could result in our being required to pay significant damages, enter into costly
license or royalty agreements, or stop the sale of certain products, any of which could have a negative effect on our results of
operations.
The Smolyansky family controls a majority of our common
stock and has the ability to control the outcome of matters submitted for stockholder approval.
A majority of our common stock is controlled
by members of the Smolyansky family, and collectively, they have the ability to control the outcome of stockholder votes, including
the election of all of our directors and the approval or rejection of any merger, change of control, or other significant corporate
transaction. No person interested in acquiring Lifeway will be able to do so without obtaining the consent of the Smolyansky family.
We believe that having the Smolyansky family as a significant part of a long-term-focused, committed, and engaged stockholder base
provides us with an important strategic advantage, particularly in a business with a mature, well-recognized brand. This advantage
could be eroded or lost, however, should Smolyansky family members cease, collectively, to be controlling stockholders of Lifeway.
We desire to remain independent and family-owned, and we believe the Smolyansky family shares these interests. However, the Smolyansky
family’s interests may not always be aligned with other stockholders’ interests. By exercising their control, the Smolyansky
family could cause Lifeway to take actions that are at odds with the investment goals of institutional, short-term, non-voting,
or other non-controlling investors, or that have a negative effect on our stock price.
Because the Smolyansky family, collectively,
controls a majority of our common stock (approximately 50.1%), we are considered a “controlled company” under Nasdaq
Listing Rules. Controlled companies are exempt from Nasdaq listing standards that require a board composed of a majority of independent
directors, a fully independent nominating/corporate governance committee, and a fully independent compensation committee. Our
Board of Directors has determined that Lifeway will avail itself of these exemptions, though we currently maintain a Board composed
of a majority of independent directors. As a result of the controlled company exemption, our corporate governance practices differ
from those of non-controlled companies, which are subject to all of the Nasdaq corporate governance requirements. Specifically,
while we continue to maintain a majority of independent directors on the Board and to ensure that a committee of those independent
directors select director nominees and determine the compensation of our officers, we have not, in the past, maintained separate
compensation or nominating committees. In May, 2020, the Board of Directors formed a separate Compensation Committee and adopted
a Compensation Committee Charter. In the event we cease to be a controlled company, we will be required to comply with all of
the corporate governance standards under Nasdaq’s rules, subject to applicable transition periods.
RISKS RELATED TO OUR INDUSTRY
The consolidation of our customers
or the loss of any of our largest customers could negatively impact our sales and results of operations.
Customers, such as supermarkets and food
distributors, continue to consolidate. This consolidation has produced larger, more sophisticated organizations with increased
negotiating and buying power that are able to resist price increases or demand increased promotional programs, as well as operate
with lower inventories, decrease the number of brands that they carry and increase their emphasis on private label products, all
of which could negatively impact our business. The consolidation of retail customers also increases the risk that a significant
adverse impact on their business could have a corresponding material adverse impact on our business.