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 face 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 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, 2021, we had $2.77 million
outstanding under the Revolving Credit Facility and $4.47 million outstanding under the note payable, net of $30 thousand of unamortized
deferred financing. 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 Revolving Credit Facility and term loan 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 whose responsibilities
cannot otherwise be distributed among our other officers, 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 substantial portion of our common
stock and has the ability to control the outcome of matters submitted for stockholder approval.
Members of the Smolyansky family together control
49.61% of our common stock and collectively, they could significantly influence any matter requiring approval by our stockholders, including
the election of all of our directors and the approval or rejection of any merger, change of control, or other significant corporate transaction.
It is unlikely that any person interested in acquiring Lifeway will be able to do so without obtaining the consent of some members of
the Smolyansky family. The Smolyansky family’s interests may not always be aligned with other stockholders’ interests. By
exercising their influence, members of 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.
Recently identified material weaknesses in our internal control
over financial reporting could have a significant adverse effect on our business and the price of our common stock.
Maintaining effective internal control over financial
reporting is necessary for us to produce reliable financial statements. As a public reporting company, we are subject to the rules and
regulations established from time to time by the SEC and Nasdaq. These rules and regulations require, among other things, that we have,
and periodically evaluate, procedures with respect to our internal control over financial reporting. In addition, as a public company
we are required to document and test our internal control over financial reporting pursuant to Section 404 of the Sarbanes-Oxley Act so
that our management can certify as to the effectiveness of our internal control over financial reporting.
We have identified a material weakness in our
internal control. A description of the material weakness can be found in Item 9A of this Annual Report on Form 10-K.
Unless and until this material weakness has been
remediated or should new material weaknesses arise or be discovered in the future, material misstatements could occur and go undetected
in our interim or annual consolidated financial statements, and we may be required to restate our financial statements. In addition, we
may experience delays in satisfying our reporting obligations or to comply with SEC rules and regulations, which could result in investigations
and sanctions by regulatory authorities. Any of these results could adversely affect our business and the value of our common stock.
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.
Two of our customers together accounted for 23%
of our net sales in the fiscal year ended December 31, 2021. Where we enter into written agreements with our customers, they are generally
terminable after short notice periods by the customer. In addition, our customers sometimes award contracts based on competitive bidding,
which could result in lower profits for contracts we win and the loss of business for contracts we lose. The loss of any large customer,
the reduction of purchasing levels, or the cancellation of any business from a large customer for an extended period of time could negatively
affect our sales and results of operations.
We rely on sales made by or through our independent
distributors to customers. Distributors purchase directly for their own account for resale. The loss of, or business disruption at, one
or more of these distributors may harm our business. If we are required to obtain additional or alternative distribution agreements or
arrangements in the future, we cannot be certain that we will be able to do so on satisfactory terms or in a timely manner. Our inability
to enter into satisfactory distribution agreements may inhibit our ability to implement our business plan or to establish markets necessary
to expand the distribution of our products successfully.
We are subject to the risk of product contamination
and product liability claims, which could harm our reputation, force us to recall products and incur substantial costs.
The sale of food products for human consumption
involves the risk of injury to consumers. Such injuries may result from tampering by unauthorized third parties, inadvertent mislabeling,
product contamination or spoilage, including the presence of foreign objects, substances, chemicals, other agents, or residues introduced
during the storage, processing, handling or transportation phases. We also may be subject to liability if our products or production processes
violate applicable laws or regulations, including environmental, health, and safety requirements, or in the event our products cause injury,
illness, or death.
Under certain circumstances, we may be required
to recall or withdraw products, suspend production of our products, or cease operations, which may lead to a material adverse effect
on our business. In addition, customers may cancel orders for such products as a result of such events. Even if a situation does not
necessitate a recall or market withdrawal, and even if we and each of our co-packers and suppliers comply in all material respects with
all applicable laws and regulations, we may become subject to claims or lawsuits relating to such matters. Even if a product liability
claim is unsuccessful or is not fully pursued, the negative publicity surrounding any assertion that our products caused illness or physical
harm, including the risk of reputational harm being magnified and/or distorted through the rapid dissemination of information over the
Internet, including through news articles, blogs, chat rooms, and social media, could adversely affect our reputation with existing and
potential customers and consumers and our corporate and brand image. Moreover, claims or liabilities of this type might not be covered
by our insurance or by any rights of indemnity or contribution that we may have against others. We maintain product liability and product
recall insurance in amounts that we believe to be adequate. However, we cannot be sure that we will not incur claims or liabilities for
which we are not insured or that exceed the amount of our insurance coverage. A product liability judgment against us or a product recall
could have a material adverse effect on our business, consolidated financial condition, results of operations or liquidity.
We rely on independent certification for several of our products
and facilities.
We rely on independent certification, such as
certifications of our products as “organic,” or “gluten-free,” to differentiate our products from others. The
loss of any independent certifications could adversely affect our market position as a probiotic-based product and natural, “better
for you” foods company, which could harm our business. We rely on independent SQF certification at some of our facilities, a certification
that some of our customers require us to maintain.
We must comply with the requirements of independent
organizations or certification authorities in order to label our products as certified. For example, we can lose our “organic”
certification if a manufacturing plant becomes contaminated with non-organic materials, or if it is not properly cleaned after a production
run. In addition, all organic raw materials must be certified organic or organic compliant. Our products could lose their organic certifications
if our raw material suppliers lose their organic certifications. Similarly, we could lose our SQF certification if we do not meet the
requirements of the SQF Code. The loss of these certifications could cause us to lose customers that require Lifeway products and/or
facilities to carry some or all of them, which could negatively affect our sales and results of operations.
Increases in the cost of raw milk could
reduce our gross margin and profit.
Conventional and organic raw milk, our primary
raw material, is an agricultural commodity that is subject to price fluctuations. Both conventional and organic milk prices in fiscal
2021 were higher than the prior year, and there can be no assurance that such prices will remain at these levels in the future. The supply
and price of raw milk may be impacted by, among other things, weather, natural disasters, real or perceived supply shortages, lower dairy
and crop yields, general increases in farm inputs and costs of production, political and economic conditions, labor actions, government
actions, and trade barriers. Increases in the market price for raw milk or over-order premiums charged by producers may also impact our
ability to enter into purchase commitments at a fixed price. There can be no assurance that our purchasing practices will mitigate future
price risk. As a result, increases in the cost of raw milk could have an adverse impact on our profitability.
In addition, the dairy industry continues to
experience periodic imbalances between supply and demand for organic raw milk. Industry regulation and the costs of organic farming compared
to costs of conventional farming can impact the supply of organic raw milk in the market. Oversupply levels of organic raw milk can increase
competitive pressure on our products and pricing, while supply shortages can cause higher input costs and reduce our ability to deliver
product to our customers. Cost increases in raw materials and other inputs could cause our profits to decrease significantly compared
to prior periods, as we may be unable to increase our prices to offset the increased cost of these raw materials and other inputs. If
we are unable to obtain raw materials and other inputs for our products or offset any increased costs for such raw materials and inputs,
our business could be negatively affected.
Reduced availability of raw materials and
other inputs, as well as increased costs for them, could adversely affect us.
Our business depends heavily on raw materials
and other inputs in addition to conventional and organic raw milk, such as sweeteners, diesel fuel, packaging material, resin, and other
commodities. Our raw materials are generally sourced from third-party suppliers, and we are not assured of continued supply, pricing,
or exclusive access to raw materials from any of these suppliers. In 2021, costs to us increased primarily due to inflationary price increases
of other ingredients, packaging materials, and freight. However, for market conditions or competitive reasons, our pricing actions may
also lag input cost changes, or we may not be able to pass along the full effect of increases in raw materials and other input costs as
we incur them.
The organic ingredients we use in some of our
products are less plentiful and available from a fewer number of suppliers than their conventional counterparts. Competition with other
manufacturers in the procurement of organic product ingredients may increase in the future if consumer demand for organic products increases.
Our business is subject to various food,
environmental, and health and safety laws and regulations, which may increase our compliance costs, subject us to liabilities, or otherwise
adversely affect our business.
Our business operations are subject to numerous
requirements in the United States relating to food safety, production, and marketing, as well as the protection of the environment, and
health and safety matters. The food production and marketing industry is subject to a variety of federal, state, local, and foreign laws
and regulations, including food safety requirements related to the ingredients, manufacture, processing, storage, marketing, advertising,
labeling, and distribution of our products, as well as those related to worker health and workplace safety. Our activities, both in and
outside of the United States, are subject to extensive regulation. We are regulated by, among other federal and state authorities, the
FDA, USDA, the U.S. Federal Trade Commission (“FTC”), and the U.S. Departments of Commerce, and Labor, as well as by similar
authorities in the foreign countries in which we do business. Environmental laws including the Clean Air Act, the Clean Water Act, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, and the National Organic Standards of the U.S.
Department of Agriculture, as well as similar state and local statutes and regulations in the United States and in each of the foreign
countries in which we do business apply to our business operations as well. These laws and regulations govern, among other things, air
emissions and the discharge of wastewater and other pollutants, the use of refrigerants, the handling and disposal of hazardous materials,
and the cleanup of contamination in the environment.
In addition, the marketing and advertising of
our products could make us the target of claims relating to alleged false or deceptive advertising under federal, state, and foreign
laws and regulations, and we may be subject to initiatives that limit or prohibit the marketing and advertising of our products to children.
We are also subject to federal laws and regulations
relating to our organic 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. Regulations and formal and informal positions
taken by the NOP pursuant to the Organic Foods Production Act of 1990, which created the NOP, are subject to continued review and scrutiny.
Changes in these laws or regulations or the introduction
of new laws or regulations could increase our compliance costs, increase other costs of doing business for us, our customers, or our suppliers,
or restrict our actions, which could adversely affect our results of operations. In some cases, new laws and regulations or other federal
and state regulatory initiatives could interrupt distribution of our products or force changes in our production processes and our products.
Governmental regulations also affect taxes and levies, healthcare costs, energy usage, immigration, and other labor issues, all of which
may have a direct or indirect effect on our business or those of our customers or suppliers. These costs could negatively affect our results
of operations and financial condition. Further, if we are found to be in violation of applicable laws and regulations in these areas,
we could be subject to civil remedies, including third-party claims for property damage or personal injury, fines, injunctions, recalls,
cleanup costs, and other civil sanctions, as well as potential criminal sanctions, any of which could have a material adverse effect on
our business.
RISKS RELATED TO COVID-19 AND
OTHER PANDEMIC OR DISEASE OUTBREAKS
Pandemics or disease outbreaks,
such as the COVID-19 pandemic, may disrupt consumption and trade patterns, supply chains, available labor supply, and production processes,
which could materially affect our operations and results of operations.
The ultimate impact that the COVID-19
pandemic or any future pandemic or disease outbreak will have on our business and our consolidated results of operations is uncertain.
To date we have seen increased customer
and consumer demand for our products. We have not experienced significant supply chain disruptions or labor supply shortages and we have
continued to be able to satisfy customer and consumer demand for our products. However, the COVID-19 pandemic, or any future pandemic,
may limit the availability of, or increase the cost of, employees, ingredients, packaging and other inputs necessary to produce our products,
and our operations may be negatively impacted. In 2021, our costs increased primarily due to inflationary price increases of milk,
other ingredients, packaging materials, and freight. However, because of market conditions or for competitive reasons, our pricing actions
may sometimes lag input cost changes, or we may not be able to pass along the full effect of increases in raw materials and other input
costs as we incur them.
In 2022, social distancing, shelter-in-place
and work-from-home mandates and recommendations have begun to be reduced or eliminated. The increased customer demand we have realized
over the past two years as consumers increased their at-home consumption and e-commerce purchasing during the COVID-19 pandemic may change
or decrease due to the decrease in social distancing and stay-at-home and work-from-home mandates and recommendations. We are unable to
predict the nature and timing of when such change may occur, if at all.
The ultimate
impact of the COVID-19 pandemic on our business will depend on many factors, including, among others, whether additional waves of COVID-19
or different variants of COVID-19 will affect the United States and other markets and the duration of any social distancing and stay home
and work from home mandates or recommendations that may occur as a result of such COVID-19 wave or variant; our ability and the ability
of our suppliers to continue to maintain production despite unprecedented demand in the food industry, supply chain disruptions, tight
labor markets and increased raw materials and packaging costs; and the extent to which macroeconomic conditions resulting from the pandemic
and the pace of the subsequent recovery impact consumer eating and shopping habits. We cannot predict the duration or scope of the disruption
or the impact of any recovery from the impacts of COVID-19. Therefore, the financial impact cannot be reasonably estimated at this time.
Future pandemics
or disease outbreaks could similarly adversely affect economies and financial markets, consumer spending and confidence levels and result
in an economic downturn that affects customer demand for our products. Our efforts to manage and mitigate these risks may be unsuccessful,
and the effectiveness of these efforts depends on factors beyond our control, including the duration and severity of any pandemic or disease
outbreak, as well as third party actions taken to contain its spread and mitigate public health effects.
ITEM 1B
UNRESOLVED STAFF COMMENTS
None.
ITEM 2
PROPERTIES
We operate the following facilities:
Location Owned / Leased Principal Use
Waukesha, Wisconsin Owned Production of kefir, administrative offices
Niles, Illinois Owned Distribution center, administrative offices
Lifeway believes that its facilities are adequate
for its current needs and that suitable additional space will be available on commercially acceptable terms as required. We believe that
we have adequate insurance coverage for all our properties.
ITEM 3
LEGAL PROCEEDINGS
From time to time, we are engaged in litigation
matters arising in the ordinary course of business. While the results of litigation and claims cannot be predicted with certainty, Lifeway
believes that no such matter is reasonably likely to have a material adverse effect on our financial position or results of operations.
ITEM 4
MINE SAFETY DISCLOSURES
Not applicable.
PART II
ITEM 5
MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES
Our common stock is listed on the Nasdaq Global
Market under the symbol “LWAY.” Trading commenced on March 29, 1988. As of June 17, 2022, there were approximately 55 holders
of record of Lifeway’s Common Stock, one of which was Cede & Co., a nominee for Depository Trust Company, or DTC, and 75 financial
institutions as nominees for beneficial owners or in “street name” the shares of which were deposited into participant accounts
at DTC and are considered to be held of record by Cede & Co. as one stockholder.
Common stock price
The following table shows the high and low sale
prices per share of our common stock as reported on the Nasdaq Global Market for each quarter during the two most recent fiscal years:
Common Stock Price Range
Low High
Low High
Dividend Policy
Lifeway does not routinely declare and pay dividends.
From time to time however our Board of Directors may declare and pay dividends depending on our operating cash flow, financial condition,
capital requirements and such other factors as the Board of Directors may deem relevant.
There were no dividends declared or paid in fiscal
2021 or 2020.
Issuer Purchases of Equity Securities
ITEM 6
[RESERVED]
ITEM 7
MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion of the financial condition
and results of operations as of and for the years ended December 31, 2021 and 2020 should be read in conjunction with the audited consolidated
financial statements and the notes to those statements that are included elsewhere in this Annual Report on Form 10-K. In addition to
historical information, the following discussion contains certain forward-looking statements within the “safe harbor” provisions
of the Private Securities Litigation Reform Act of 1995. These statements relate to our future plans, objectives, expectations and intentions.
These statements may be identified by the use 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," and similar terms or terminology, or the negative of such terms or other comparable terminology.
Although we believe the expectations expressed in these forward-looking statements are based on reasonable assumptions within the bounds
of our knowledge of our business, our actual results could differ materially from those discussed in these statements. Factors that could
contribute to such differences include, but are not limited to, those discussed in the “Risk Factors” section in Part I, Item
1A. We undertake no obligation to update publicly any forward-looking statements for any reason even if new information becomes available
or other events occur in the future.
Restatement of Previously Issued Consolidated
Financial Statements
During the preparation of our fiscal 2021 consolidated
financial statements, we identified a material error in the accounting for our deferred income tax liabilities and goodwill. Specifically,
in connection with our 2009 acquisition of Fresh Made, Inc., we did not record a deferred income tax liability and corresponding increase
to goodwill related to the difference in the book and income tax bases for the $3.7 million Fresh Made indefinite-lived brand name intangible
asset acquired. The error resulted in a $1.18 million understatement of both deferred income tax liabilities and goodwill of as of January
1, 2020. The Restatement had no impact on our Consolidated Statements of Operations, Consolidated Statements of Cash Flows, or Consolidated
Statements of Stockholders’ Equity during 2021 and 2020. The impact of the Restatement on periods prior to 2020 had no effect on
opening retained earnings as of January 1, 2020.
The accounting adjustments required to correct
the error in the consolidated financial statements for the year ended December 31, 2020 as a result of completing the restatement
process are described in Note 1 – Basis of presentation - Restatement of Previously Issued Consolidated Financial Statements included
in “Part II – Item 8 – Financial Statements and Supplementary Data.” Note 17 – Restatement of previously
issued unaudited consolidated financial statements presents the accounting adjustments to correct the error in the quarterly consolidated
financial statements for the fiscal quarters in 2020 and 2021.
The accompanying Management’s Discussion
and Analysis of Financial Condition and Results for Operation gives effect to the Restatement adjustments made to the previously reported
Consolidated Financial Statements for the year ended December 31, 2020.
Recent Developments
COVID-19 Pandemic Impact
In December 2019, COVID-19 was first reported
and subsequently characterized by the World Health Organization ("WHO") as a pandemic in March 2020. In an effort to reduce
the global transmission of COVID-19, various policies and initiatives have been implemented by governments around the world, including
orders to close businesses not deemed "essential", shelter-in-place orders enacted by state and local governments, and the practice
of social distancing measures when engaging in essential activities.
During the first quarter of 2020, Management,
anticipating the spread of COVID-19 and its effects, implemented a plan to mitigate effects of COVID-19 on supply and transportation of
materials used to make and package our products, staffing, and transportation of our products to customers. Management’s proactive
planning allowed the Company to avoid disruption to its manufacturing facilities and production, transportation, and sales and to meet
the increased demand without delay. The Company has maintained full production capacity available at all locations and does not anticipate
manufacturing or staffing disruptions in the near term.
To date, we
have seen increased customer and consumer demand for our products. We have not experienced significant supply chain disruptions or labor
supply shortages and we have continued to be able to satisfy customer and consumer demand for our products. However, the COVID-19 pandemic,
or any future pandemic, may limit the availability of, or increase the cost of, employees, ingredients, packaging and other inputs necessary
to produce our products, and our operations may be negatively impacted. In 2021, our costs increased primarily due to inflationary price
increases of milk, other ingredients, packaging materials, and freight. However, because of market conditions or for competitive reasons,
our pricing actions may sometimes lag input cost changes, or we may not be able to pass along the full effect of increases in raw materials
and other input costs as we incur them.
Recently, in 2022, social distancing,
shelter-in-place and work-from-home mandates and recommendations have begun to be reduced or eliminated. The increased customer demand
for our products as consumers increased their at-home consumption and e-commerce purchasing during the COVID-19 pandemic may change or
decrease due to the decrease in social distancing and stay-at-home and work-from-home mandates and recommendations. We are unable to predict
the nature and timing of when such change may occur, if at all.
Results of Operations
Comparison of Year Ended December 31, 2021
to Year Ended December 31, 2020 (in 000’s)
December 31,
$ % $ %
Other income (expense):
Gain on investments 2 0.0 % 4 0.0 %
Loss on sales or property and equipment (88 ) (0.1 %) (28 ) (0.0 %)
Total other income (expense) (264 ) (0.2 %) (95 ) (0.1 %)
Income before provision for income taxes 5,616 4.7 % 4,828 4.7 %
Net Sales
Net sales were $119,065 for the year ended December
31, 2021, an increase of $17,039 or 16.7% versus prior year. The net sales increase was primarily driven by higher volumes of our branded
drinkable kefir and, to a lesser extent, the favorable impact of our acquisition of Glen Oaks Farms during the third quarter of 2021.
Approximately 11% of the net sales increase results from our acquisition of Glen Oaks Farms during the third quarter of 2021. Approximately
20% of the net sales increase results from the Farmers to Families Food Box program with the USDA, which began during the middle of the
first quarter of 2021 and ended during May 2021.
Gross Profit
Gross profit as a percentage of net sales decreased
to 24.1% during the year ended December 31, 2021 from 26.4% during the same period in 2020. The decrease versus the prior year was primarily
due to the unfavorable impact of milk pricing, and the inflationary price increases of other ingredients, packaging materials, and freight,
partially offset by the decrease in depreciation expense and favorable labor efficiency due to increased volumes. We took favorable pricing
actions beginning in December 2021 to recover input and freight cost inflation. However, for market conditions or competitive reasons,
our pricing actions may also lag input cost changes, or we may not be able to pass along the full effect of increases in raw materials
and other input costs as we incur them.
Selling Expenses
Selling expenses increased by $900 to $11,097
during the year ended December 31, 2021 from $10,197 during the same period in 2020. The increase versus prior year is primarily due to
increased investment in advertising and marketing programs, partially offset by lower compensation and broker expense.
General and Administrative Expenses
General and administrative expenses decreased
$50 to $11,611 during the year ended December 31, 2021 from $11,661 during the same period in 2020. The decrease is primarily a result
of lower compensation, related party consulting, and office rent expense, partially offset by higher employee incentive compensation expense.
Provision for Income Taxes
The provision for income taxes includes federal,
state and local income taxes. The provision for income taxes was $2,305 and $1,596 during the year ended December 31, 2021 and 2020, respectively.
Our effective income tax rate was 41.0% in 2021
compared to 33.1% in 2020. The statutory Federal and state tax rates remained consistent from 2020 to 2021. The Company has a number of
items that are nondeductible or are discrete adjustments to tax expense. The Company consistently reflects non-deductible officer compensation
expense, non-deductible compensation expense related to equity incentive awards and separate state tax rates from year to year. Although
similar items were reflected in 2021, the percentage effect is different due to the difference in pre-tax income in 2021 compared to 2020.
Our effective tax rate may change from period
to period based on recurring and non-recurring factors including the relative mix of pre-tax earnings (or losses), the underlying income
tax rates applicable to various state and local taxing jurisdictions, enacted tax legislation, the impact of non-deductible items, changes
in valuation allowances, and the expiration of the statute of limitations in relation to unrecognized tax benefits. We record discrete
income tax items such as enacted tax rate changes in the period in which they occur.
Section 162(m) of the Internal Revenue Code (the
“Code”) limits the deductibility of compensation paid to certain of our executives. Under Section 162(m), no tax deduction
in taxable years beginning after December 31, 2017 is allowed for compensation paid to any covered employee to the extent that the total
compensation for that covered employee exceeds $1,000,000 in any taxable year.
Income taxes are discussed
in Note 10 in the Notes to the Consolidated Financial Statements.
Net Income (Loss)
We reported net income of $3,311 or $0.21 per
basic and diluted common share for the year ended December 31, 2021 compared to net income of $3,232 or $0.21 per basic and diluted common
share in the same period in 2020.
Liquidity and Capital Resources
Cash Flow
At this time, the COVID-19 pandemic has not materially
impacted our operations. We expect to meet our foreseeable liquidity and capital resource requirements, and to ensure the continuation
of the Company as a going concern, through anticipated cash flows from operations, our revolving credit facility and cash and cash equivalents.
If additional borrowings are needed, approximately $2,223 was available under the Revolving Credit Facility as of December 31, 2021. See
Note 7 to our Consolidated Financial Statements for additional information regarding our Revolving Credit Facility. We are in compliance
with the terms of the Credit Agreement and expect to meet foreseeable financial requirements. The success of our business and financing
strategies will continue to provide us with the financial flexibility to take advantage of various opportunities as they arise. Given
the dynamic nature of COVID-19, we will continue to assess our liquidity needs while continuing to manage our discretionary spending and
investment strategies.
The ultimate
impact that the COVID-19 pandemic or any future pandemic or disease outbreak will have on our business and our consolidated results of
operations is uncertain.
Sources and Uses of Cash
Lifeway had a net increase in cash and cash equivalents
of $1,307 and $4,090 during the years ended December 31, 2021 and 2020, respectively. The drivers of the year over year change are as
follows:
Net cash provided by operating activities was
$6,144 in 2021 compared to $6,385 in 2020, a decrease in cash provided of $241. The decrease is primarily due to the change in working
capital.
Net cash used in investing activities was $7,722
in 2021 compared to $1,890 in 2020, an increase in cash used of $5,832. The increase reflects the August 2021 acquisition of Glen Oak
Farms, Inc. The $5,800 acquisition purchase price was funded through proceeds from our new $5,000 term loan and existing cash. Capital
spending was $1,922 in 2021 compared to $1,895 in 2020. Our capital spending is focused in three core areas: growth, cost reduction, and
facility improvements. Growth capital spending supports new product innovation and enhancements. Cost reduction and facility improvements
support manufacturing efficiency, safety and productivity.
Net cash provided by financing activities was
$2,885 during the year ended December 31, 2021 compared to net cash used in financing activities of $405 in the same period in 2020.
The increase in net cash provided by financing activities relates to the term loan entered into during August 2021 in connection with
the acquisition of Glen Oaks Farms, Inc. See the Debt Obligations section below for further detail.
On June 24, 2021, Lifeway’s Board authorized
a plan to repurchase up to 250 shares of Common Stock in the open market within 24 months at no more than $10 per share. We repurchased
all 250 shares of common stock at a cost of $1,583 during the three-month period ended September 30, 2021. We intend to hold repurchased
shares in treasury for general corporate purposes, including issuances under our 2015 Omnibus Incentive Plan. Treasury shares are accounted
for using the cost method.
Debt Obligations
On August 18, 2021, Lifeway entered into the
Fourth Modification (the “Fourth Modification”) to the Amended and Restated Loan and Security Agreement (as amended and modified
from time to time, the “Credit Agreement”) with its existing lender and certain of its subsidiaries. The Fourth Modification
amends the Credit Agreement to provide for, among other things, a $5 million term loan by the existing lender to the borrowers to be
repaid in quarterly installments of principal and interest over a term of five years (the “Term Loan”). The termination
date of the Term Loan is August 18, 2026, unless earlier terminated. Except for the addition of the Term Loan, the Credit Agreement remains
substantively unchanged and in full force and effect.
As of December 31, 2021, we had $2,777 outstanding
under the Revolving Credit Facility and $4,470 outstanding under the note payable, net of $30 of unamortized deferred financing fees.
We had $2,223 available for future borrowings under the Revolving Credit Facility as of December 31, 2021. As amended, all outstanding
amounts under the Loans bear interest, at Lifeway’s election, at either the lender Base Rate (the Prime Rate minus 1.00%) or the
LIBOR plus 1.95%, payable monthly in arrears. Lifeway is also required to pay a quarterly unused line fee of 0.20% on the Revolving Credit
Facility and, in conjunction with the issuance of any letters of credit, a letter of credit fee of 0.20%. The interest rate on debt outstanding
under the Loans as of December 31, 2021 was 2.15%.
We are in compliance with all applicable financial
debt covenants as of December 31, 2021. See Note 7 to our Consolidated Financial Statements for additional information regarding our
indebtedness and related agreements.
Off-Balance Sheet Arrangements
We do not have any off-balance sheet financing
arrangements as defined in Item 303(a)(4) of Regulation S-K.
Contractual Obligations
Not applicable.
Critical Accounting Estimates
Critical accounting estimates are those estimates
made in accordance with U.S. GAAP that involve a significant level of estimation uncertainty and have had or are reasonably likely to
have a material impact on the financial condition or results of operations of the registrant. In many cases, the accounting treatment
of a particular transaction is specifically dictated by U.S. GAAP with no need for the application of our judgement. In certain circumstances,
the preparation of our Consolidated Financial Statements in conformity with U.S. GAAP requires us to use our judgment to make certain
estimates and assumptions. These estimates affect the reported amounts of assets and liabilities and disclosures of contingent assets
and liabilities at the date of the Consolidated Financial Statements and the reported amounts of net sales and expenses during the reporting
period. We believe in the quality and reasonableness of our critical accounting estimates; however, materially different amounts might
be reported under different conditions or using assumptions, estimates or making judgments different from those that we have applied.
Management has discussed the development and selection of these critical accounting policies, as well as our significant accounting policies
(see Note 2 to the Consolidated Financial Statements), with the Audit Committee of our Board of Directors. We have identified the policies
described below as our critical accounting policies.
Goodwill and intangible asset valuation
Goodwill totaled $11,704 as of December 31, 2021.