SEC Company Response from Lifeway Foods, Inc. (LWAY) (CIK 0000814586) (LWAY) — Nov 29, 2016
Lifeway Foods, Inc. (LWAY) (CIK 0000814586)
Date: Nov. 29, 2016 · CIK: 0000814586 · Accession: 0001683168-16-000811
AI Filing Summary & Sentiment
Reasoning
File numbers found in text: 000-17363
Referenced dates: November 15, 2016
Letter
Via Edgar Securities and Exchange Commission Division of Corporation Finance Attn: Ethan Horowitz Re: Lifeway Foods, Inc. Form 8-K Filed November 8, 2016 File No. 000-17363
Dear Mr. Horowitz:
On behalf of our client, Lifeway Foods, Inc., an Illinois corporation (the “Company”), we are responding to the comment letter issued by the staff of the Commission (the “Staff”) to John Waldron, Chief Financial Officer of the Company, dated November 15, 2016 on the above-referenced Form 8-K (“Form 8-K”). The Staff’s comment has been incorporated into this response letter for your convenience.
Staff Comment and Company Response
Item 4.02 Form 8-K Filed November 8, 2016
1. We note you have determined that your financial statements for the periods identified in your Item 4.02 Form 8-K should no longer be relied upon as a result of certain errors described therein. Rather than amend the quarterly and annual reports on Form 10-Q and 10-K for the periods affected, you intend to include restated financial statements in future Exchange Act reports. Deferring the filing of corrected financial statements and a revised report from your independent registered public accounting firm to future filings rather than amending previously filed reports does not appear to be appropriate. Please amend your filings as soon as practicable. See question 133.01 of the Compliance and Disclosure Interpretations concerning Exchange Act Rules.
Response: The Company will be amending and restating its (i) Annual Report on Form 10-K filed with the Commission on March 16, 2016, specifically the audited financial statements for the 2013, 2014 and 2015 fiscal years and Part II, Item 9A; and (ii) its Quarterly Reports on Form 10-Q filed with the Commission on May 10, 2016 and August 17, 2016, specifically the interim unaudited financial statements and Part I, Item 4. The Company does not intend to amend any Quarterly Reports on Form 10-Q filed during the 2015 fiscal year. The impact of the accounting error referred to in the Form 8-K for the three and nine month periods ended September 30, 2015 has been corrected in the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 10, 2016, and the impact of the error on the first and second quarters of 2015 will be corrected in the proposed amended and restated Quarterly Reports on Form 10-Q filed with the Commission on May 10, 2016 and August 17, 2016. In addition, the Company proposes to include appropriate note disclosure in its amended and restated 2015 Form 10-K of the errors and the corrected amounts for the 2015 quarterly periods.
Securities and Exchange Commission
Division of Corporation Finance
November 29, 2016
Page 2
The Company intends to file the above-referenced amended and restated reports as soon as reasonably possible. The Company believes it will be able to file the amended and restated Quarterly Reports on Form 10-Q within three to four weeks from the date of this letter. The Company believes the amended and restated 2015 Form 10-K may require more time due to the higher degree of involvement required on the part of its current and former auditors and, for this reason, it is unable to estimate the filing time until it has discussed the matter with its current auditor and each of its two predecessor audit firms. Once the Company has discussed the filing with its current and former auditors, it will provide the staff with an update on the planned filing of the amended and restated 2015 Form 10-K. In the meantime, we wish to point out that the Form 8-K sets forth a complete summary of the accounting errors and the corrected figures for all accounting periods in fiscal 2015 and 2016.
The Company has endeavored to fully respond to the Staff's comment set forth in its letter dated November 15, 2016. Thank you in advance for your review. Please contact the undersigned with any questions or comments at (949) 732-6557.
Very truly yours,
/s/ Daniel K. Donahue
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CORRESP
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filename1.htm
Daniel K. Donahue
Tel 949.732.6500
Fax 949.732.6501
donahued@gtlaw.com
November 29, 2016
Via Edgar
Securities and Exchange Commission
Division of Corporation Finance
100 F Street, N.E.
Washington, DC 20549
Attn: Ethan Horowitz
Re: Lifeway Foods, Inc.
Form 8-K Filed November 8, 2016
File No. 000-17363
Dear Mr. Horowitz:
On behalf of our client,
Lifeway Foods, Inc., an Illinois corporation (the “Company”), we are responding to the comment letter
issued by the staff of the Commission (the “Staff”) to John Waldron, Chief Financial Officer of the Company,
dated November 15, 2016 on the above-referenced Form 8-K (“Form 8-K”). The Staff’s comment has
been incorporated into this response letter for your convenience.
Staff Comment and Company Response
Item 4.02 Form 8-K Filed November 8, 2016
1. We note you have determined that your financial statements for the periods identified in your Item
4.02 Form 8-K should no longer be relied upon as a result of certain errors described therein. Rather than amend the quarterly
and annual reports on Form 10-Q and 10-K for the periods affected, you intend to include restated financial statements in future
Exchange Act reports. Deferring the filing of corrected financial statements and a revised report from your independent registered
public accounting firm to future filings rather than amending previously filed reports does not appear to be appropriate. Please
amend your filings as soon as practicable. See question 133.01 of the Compliance and Disclosure Interpretations concerning Exchange
Act Rules.
Response: The Company
will be amending and restating its (i) Annual Report on Form 10-K filed with the Commission on March 16, 2016, specifically the
audited financial statements for the 2013, 2014 and 2015 fiscal years and Part II, Item 9A; and (ii) its Quarterly Reports on Form
10-Q filed with the Commission on May 10, 2016 and August 17, 2016, specifically the interim unaudited financial statements and
Part I, Item 4. The Company does not intend to amend any Quarterly Reports on Form 10-Q filed during the 2015 fiscal year. The
impact of the accounting error referred to in the Form 8-K for the three and nine month periods ended September 30, 2015 has been
corrected in the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 10, 2016, and the impact of
the error on the first and second quarters of 2015 will be corrected in the proposed amended and restated Quarterly Reports on
Form 10-Q filed with the Commission on May 10, 2016 and August 17, 2016. In addition, the Company proposes to include appropriate
note disclosure in its amended and restated 2015 Form 10-K of the errors and the corrected amounts for the 2015 quarterly periods.
Securities
and Exchange Commission
Division
of Corporation Finance
November
29, 2016
Page 2
The Company intends to file the
above-referenced amended and restated reports as soon as reasonably possible. The Company believes it will be able to file
the amended and restated Quarterly Reports on Form 10-Q within three to four weeks from the date of this letter. The Company believes
the amended and restated 2015 Form 10-K may require more time due to the higher degree of involvement required on the part of its
current and former auditors and, for this reason, it is unable to estimate the filing time until it has discussed the matter with
its current auditor and each of its two predecessor audit firms. Once the Company has discussed the filing with its current and
former auditors, it will provide the staff with an update on the planned filing of the amended and restated 2015 Form 10-K. In
the meantime, we wish to point out that the Form 8-K sets forth a complete summary of the accounting errors and the corrected figures
for all accounting periods in fiscal 2015 and 2016.
The Company has endeavored
to fully respond to the Staff's comment set forth in its letter dated November 15, 2016. Thank you in advance for your review.
Please contact the undersigned with any questions or comments at (949) 732-6557.
Very truly yours,
/s/ Daniel K. Donahue
Daniel K. Donahue
cc: Lifeway Foods, Inc.