Lifeway Foods (LWAY) 10-K/A 2019 FY Annual report (amended)

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

Form 10-K/A

Amendment No. 2

ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)

OF THE SECURITIES EXCHANGE ACT OF 1934

For the fiscal year ended December 31, 2019

Commission file number: 000-17363

LIFEWAY FOODS, INC.

(Name of registrant as specified in its charter)

Illinois	36-3442829
(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.

Large accelerated filer ¨ Accelerated filer o Non-accelerated filer o Smaller reporting company þ Emerging growth company o

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, 2019 ($3.64 per share as quoted on the Nasdaq Global Market) was $15,486,977.

As of July 23, 2020, 15,604,480 shares of the registrant’s common stock, no par value, were outstanding

EXPLANTORY NOTE

The sole purpose of this Amendment No. 2 on Form 10-K/A (the “Amendment No. 2”) to the Annual Report on Form 10-K of Lifeway Foods, Inc. (the “Company”) for the fiscal year ended December 31, 2019 filed with the Securities and Exchange Commission (the “SEC”) on April 14, 2020 (the “Original Form 10-K”), as amended by Amendment No. 1 to Form 10-K filed with the SEC on June 15, 2020 ( “Amendment No. 1” and together with the Original Form 10-K, the “Form 10-K”) is to add this Explanatory Note disclosing that, as previously disclosed in the Company’s Current Report on Form 8-K as filed with the SEC on April 29, 2020 (the “Form 8-K”), the Company relied on the relief provided by the SEC’s March 4, 2020 Order (Release No. 34-88318), as modified on March 25, 2020 (Release No. 34-88465) (collectively, the “Order”), in filing information required in Part III of Form 10-K in Amendment No. 1. The SEC Order provides conditional relief to public companies that are unable to timely comply with their filing obligations as a result of the novel coronavirus (“COVID-19”) outbreak by extending, subject to the conditions of the SEC Order, the filing deadline by up to 45 days for certain Exchange Act reports due on or before July 1, 2020.

As described in the Form 8-K, due to a stay at home order in place for Illinois residents, the Company implemented work from home policies for all non-production employees to protect its employees and their families from potential virus transmission among co-workers. Outside service providers involved with the Company’s Form 10-K/A process implemented similar work from home policies. Increased difficulty accessing documents, information and materials and other priorities including school closures, illness, responsibility for elders and other issues related stay at home orders and COVID-19 have negatively impacted key personnel involved in the Company’s process and the Company’s ability to complete and file Amendment No. 1.

As required by Rule 12b-15 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), this Amendment includes as exhibits the certifications required of our principal executive officer and principal financial officer under Section 302 of the Sarbanes-Oxley Act of 2002. We have included Part IV, Item 15 in this Amendment to reflect the filing of these exhibits with this Amendment No. 2. We are not including certifications under Section 906 of the Sarbanes-Oxley Act of 2002, as no financial statements are being filed with this Amendment.

The Form 10-K continues to speak as of the date of the Original Filing. Except as described above and except that we have updated the number of outstanding shares of our common stock on the cover page of this report, this Amendment does not amend or modify any other information set forth in the Form 10-K and we have not updated or modified disclosures included therein to reflect any events which occurred subsequent to the filing of the Form 10-K. Accordingly, this Amendment should be read in conjunction with the Original Form 10-K and Amendment No. 1 and with our other filings made with the SEC subsequent to the filing of the Original Form 10-K.  

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PART IV

ITEM 15.        EXHIBITS, FINANCIAL STATEMENT SCHEDULES.

1. A list of the Financial Statements and Financial Statement Schedules filed as part of this Report is set forth in Part II, Item 8, which list is incorporated herein by reference.

2.	Financial Statement Schedules – Separate financial statement schedules have been omitted either because they are not applicable or because the required information is included in the consolidated financial statements
3.	Exhibits.

No.	Description	Form	Period Ending	Exhibit	Filing Date
3.1	Amended and Restated Bylaws.	10-K	12/31/2017	3.1	3/30/2018
3.2	Articles of Incorporation, as amended and currently in effect	10-K	12/31/2013	3.2	4/2/2014
10.1	Stock Purchase Agreement dated October 1, 1999 by and among Danone Foods, Inc., Lifeway Foods, Inc., Michael Smolyansky and certain other parties	8-K	0	10.1	10/12/1999
10.2	Stockholders’ Agreement dated October 1, 1999 by and among Danone Foods, Inc., Lifeway Foods, Inc., Michael Smolyansky and certain other parties	8-K	0	10.11	10/12/1999
10.3	Letter Agreement dated December 24, 1999	8-K	0	10.12	1/12/2000
10.4	Employment Agreement, dated September 12, 2002, between Lifeway Foods, Inc. and Julie Smolyansky +	10-QSB/A No. 2	9/30/2002	10.14	4/30/2003
10.5	Consulting Agreement by and between the Company and Ludmila Smolyansky, dated as of March 8, 2016 +	10-K	12/31/2015	10.23	3/16/2016
10.6	Endorsement Agreement by and between the Company and Ludmila Smolyansky, dated as of March 14, 2016	10-K	12/31/2015	10.24	3/16/2016
10.7	Amended and Restated Loan and Security Agreement dated as of May 7, 2018 among Lifeway Foods, Inc., Fresh Made, Inc., The Lifeway Kefir Shop, LLC, Lifeway Wisconsin, Inc., and CIBC Bank USA, as Lender.	8-K		10.1	5/11/2018
10.8	Employment Agreement by and between the Company and Amy Feldman, dated as of October 29, 2018 +	8-K		10.1	11/1/2018
10.9	Employment Agreement by and between the Company and Eric Hanson, dated as of January 18, 2019 +				1/23/2019

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10.10	First Modification to Amended and Restated Loan and Security Agreement dated as of April 10, 2019 among Lifeway Foods, Inc., Fresh Made, Inc., The Lifeway Kefir Shop, LLC, Lifeway Wisconsin, Inc., and CIBC Bank USA, as Lender.	10-K	12/31/18	10.1	4/15/2019
10.11	Second Modification to Amended and Restated Loan and Security Agreement, effective as of December 10, 2019 by and among Lifeway Foods, Inc., Fresh Made, Inc., The Lifeway Kefir Shop, LLC, Lifeway Wisconsin, Inc., and CIBC Bank USA, as Lender.	8-K		10.1	12/10/2019
10.12	Lifeway Foods, Inc. 2015 Omnibus Incentive Plan +	8-K		10.2	12/18/15
10.13	Form of Notice of Restricted Stock Unit Award +	8-K		10.3	12/18/15
10.14	Form of Notice of Performance Unit Award +	8-K		10.4	12/18/15
10.15	Form of Notice of Restricted Stock Award +	8-K		10.5	12/18/15
10.16	Form of Notice of Non-Qualified Stock Option Award +	8-K		10.6	12/18/15
14	Code of Conduct and Ethics	10-K	12/31/13	14	4/2/2014
21	List of Subsidiaries of the Registrant	10-K	12/31/19	21	4/14/20
23.1	Consent of Mayer Hoffman McCann P.C.	10-K	12/31/19	23.1	4/14/20
31.1	Rule 13a-14(a)/15d-14(a) Certification of Julie Smolyansky	10-K	12/31/19	31.1	4/14/20
31.2	Rule 13a-14(a)/15d-14(a) Certification of Eric Hanson	10-K	12/31/19	31.2	4/14/20
31.3	Rule 13a-14(a)/15d-14(a) Certification of Julie Smolyansky	10-K/A No. 1	12/31/19	31.3	6/15/20
31.4	Rule 13a-14(a)/15d-14(a) Certification of Eric Hanson	10-K/A No. 1	12/31/19	31.4	6/15/20
31.5	Rule 13a-14(a)/15d-14(a) Certification of Julie Smolyansky	Filed herewith
31.6	Rule 13a-14(a)/15d-14(a) Certification of Eric Hanson	Filed herewith
32.1	Section 1350 Certification of Julie Smolyansky*	10-K	12/31/19	32.1	4/14/20
32.2	Section 1350 Certification of Eric Hanson*	10-K	12/31/19	32.1	4/14/20
99.1	Press release dated April 14, 2020 reporting the Company’s financial results for year ended December 31, 2019.	10-K	12/31/19	99.1	4/14/20
101	Interactive Data Files

+ Indicates a management contract or compensatory plan or arrangement.

* This exhibit was previously furnished with the Original Form 10-K, is not deemed filed with the Securities and Exchange Commission, and is not incorporated by reference into any filing of Lifeway Foods, Inc. under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, whether made before or after the date of the Original Form 10-K and irrespective of any general incorporation language contained in such filing.

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SIGNATURES

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this this Amendment No. 2 to its Annual Report on Form 10-K to be signed on its behalf by the undersigned, thereunto duly authorized.

	LIFEWAY FOODS, INC.
Date: August 7, 2020	By:	/s/ Julie Smolyansky
		Julie Smolyansky
		Chief Executive Officer, President, and Director

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