Item 1A. Risk Factors
ITEM 1A. RISK FACTORS.
The risk factors disclosed under Part I, Item
1A of the Company’s Annual Report on Form 10-K for the year ended December 31, 2023 should be considered together with the information
included in this Quarterly Report on Form 10-Q for the quarter ended September 30, 2024, and should not be limited to those referenced
herein or therein. The following risks and uncertainties supplement the risk factors found under Part I, Item 1A of the Company’s
Annual Report on Form 10-K for the year ended December 31, 2023.
Our business could be adversely affected
as a result of uncertainty regarding proposals or other actions taken by stockholders related to the consideration of a possible future
transaction.
On September 23, 2024, Danone North America PBC
made an unsolicited proposal to acquire all of the shares of Company common stock that Danone does not already own for $25.00 per share
(the “Proposal”). On November 4, 2024, we announced that our Board determined that the proposal substantially undervalues
the Company and is not in the best interests of the Company and its stockholders or other stakeholders. Addressing the Proposal, similar
future proposals and any other actions by stockholders or others relating to a potential change of control transaction involving the Company
could interfere with our ability to execute our strategic plans, make it more difficult to attract and retain qualified executives and
employees, cause management distraction, require us to utilize more resources than anticipated towards review of strategic alternatives
and result in the loss of potential business opportunities, any of which could have a material negative impact on the Company. In addition,
our business and operations may be harmed to the extent that our customers, suppliers and others believe that we cannot effectively compete
in the marketplace without completing a transaction, or there is customer, supplier or employee uncertainty surrounding the future direction
of our product offerings and our strategy on a continued basis. There can be no assurance that any transaction will be completed now or
in the future.
We have had to, and may continue to be forced
to, incur fees and other expenses related to the Proposal, including for third-party advisors. Further, the Proposal, similar future proposals
and any actual or perceived actions by our stockholders or others relating to a potential transaction involving the Company may cause
significant fluctuations in our stock price based upon temporary or speculative market perceptions or other factors that do not necessarily
reflect the Company’s underlying fundamentals and prospects.
Our shareholder rights plan includes terms
and conditions that could discourage a takeover or other transaction that stockholders may consider favorable.
On November 4, 2024, in response to the Proposal
and Danone’s substantial ownership position in the Company, our Board approved and adopted the Rights Agreement and declared a dividend
of one Right for each outstanding share of Company common stock to stockholders of record at the close of business on November 18, 2024.
Each Right entitles its holder, subject to the terms of the Rights Agreement, to purchase from the Company one one-thousandth of a share
of Series A Junior Participating Preferred Stock, no par value, of the Company at an exercise price of $130.00 per Right, subject to adjustment.
Rights will generally become exercisable only if any person or entity (or any persons or entities acting as a group) acquires 20% or more
of the outstanding shares of Company common stock (or, to the extent any person, entity or group beneficially owned 20% or more of the
outstanding shares of Company common stock as of immediately prior to the first public announcement of the adoption of the Rights Agreement,
such person, entity or group acquires any additional shares). If Rights become exercisable, all holders of Rights (other than the person,
entity or group triggering the Rights Agreement, whose Rights will become void and will not be exercisable) will have the right to purchase
from the Company for $130.00, subject to certain potential adjustments, shares of Company common stock having a market value of twice
that amount. The Rights Agreement expires on November 4, 2025, unless earlier terminated or the Rights are redeemed or exchanged by the
Board. Additional information regarding the Rights Agreement is contained in the Company’s Current Report on Form 8-K filed with
the Securities and Exchange Commission (the “SEC”) on November 5, 2024.
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The Rights Agreement will cause substantial dilution
to any person, entity or group that acquires beneficial ownership of 20% or more of the outstanding shares of Company common stock (or,
to the extent any person, entity or group beneficially owned 20% or more of the outstanding shares of Company common stock as of immediately
prior to the first public announcement of the adoption of the Rights Agreement, such person, entity or group acquires any additional shares).
As a result, the overall effect of the Rights Agreement and the issuance of the Rights may be to discourage any person, entity or group
from gaining a control or control-like position in the Company or engaging in other tactics, potentially disadvantaging the interests
of the Company’s stockholders, without negotiating with the Board and without paying an appropriate control premium to all stockholders.
The Rights Agreement has similar provisions to those of other plans adopted by publicly-held companies in comparable circumstances. It
is intended to protect stockholders’ interests, including by providing the Board sufficient time to make informed judgments and
take actions that are in the best interests of all of the Company’s stockholders and other stakeholders. Nevertheless, the Rights
Agreement may be considered to have certain anti-takeover effects, including potentially discouraging a third party from attempting to
obtain a substantial position in the Company common stock or seeking to obtain control of the Company and discouraging a takeover attempt
that stockholders may consider favorable or that could result in a premium over the market price of Company common stock. Even in the
absence of a takeover attempt, the Rights Agreement may adversely affect the prevailing market price of Company common stock if it is
viewed as discouraging takeover attempts in the future.
The actions of certain of our stockholders
could cause us to incur significant expense, disrupt our business, result in a proxy contest or litigation and adversely impact our stock
price.
We value constructive input from investors and
regularly engage in dialogue with our stockholders regarding strategy and performance. Our Board and management team are committed to
acting in the best interests of all of our stockholders.
Two of the Company’s stockholders, Edward
Smolyansky (our former Chief Operations Officer and the son of our founder) and Ludmila Smolyansky (a former member of our Board and the
widow of our founder (together with Mr. Smolyansky (the “Family Stockholders”)), filed a Schedule 13D/A with the SEC on August
14, 2024 announcing their intention, among other things, to nominate seven director candidates for election to our Board and replace seven
of the eight members of our Board. The Family Stockholders subsequently filed a preliminary consent solicitation statement with the SEC
in furtherance of this objective, and they have made public statements critical of our Board, management and strategy and repeatedly called
for the sale of the Company. A contested election with respect to the Company’s directors could require us to incur substantial
legal, public relations and other advisory fees and proxy solicitation expenses. Further, we may choose to initiate, or may become subject
to, litigation as a result of proposals by the Family Stockholders or other stockholders or proxy contests or matters relating thereto,
which would serve as a further distraction to our Board and management and could require us to incur significant additional costs.
We may be subject to continued or similar activism
in the future, which could cause us to incur significant expense, hinder execution of our business strategy and adversely impact the market
price of Company common stock. Stockholder actions, including potential proxy contests, require significant time and attention by management
and our Board, potentially interfering with our ability to execute our strategic plan. Such stockholder action could give rise to perceived
uncertainties as to our future, adversely affect our relationships with our employees, customers or suppliers and make it more difficult
to attract and retain qualified personnel and business partners. These perceived uncertainties may also be exploited by our competitors
and/or other stockholders, which could result in lost business opportunities and make it more difficult to execute on our long-term strategic
plan. If customers choose to delay, defer or reduce transactions with us or do business with our competitors instead of us, then our business,
financial condition and operating results would be adversely affected. We may be required to incur significant legal fees and other expenses
related to stockholder actions, and the attention of our management may be diverted by such actions. Any of these impacts could materially
and adversely affect our business, operating results and financial condition, and the market price of Company common stock could be subject
to significant fluctuation or otherwise be adversely affected. If individuals are elected or appointed to our Board with a specific agenda
or who do not agree with our strategic plan, the ability of our Board to function effectively could be adversely affected, which could
in turn adversely affect our ability to effectively and timely implement our strategic plan and create additional value for our stockholders,
and/or adversely affect our business, operating results and financial condition.
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ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES
AND USE OF PROCEEDS.
None.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES.
None.
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