-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, AW+r5Tfo/uW/gyFGRBDmBCtgypWIuIeF7BHN45HUDKfDYGERZ5FxJ4Ro1fwPjB+0 A2TloUoL1d4libq3S84IvA== 0001072613-03-000716.txt : 20030430 0001072613-03-000716.hdr.sgml : 20030430 20030430151904 ACCESSION NUMBER: 0001072613-03-000716 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20030430 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: SMOLYANSKY EDWARD CENTRAL INDEX KEY: 0001227847 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: C/O LIFE WAY FOODS STREET 2: 6431 W OAKTON STREET CITY: MORTON GROVE STATE: IL ZIP: 60053 BUSINESS PHONE: 8479671010 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: LIFEWAY FOODS INC CENTRAL INDEX KEY: 0000814586 STANDARD INDUSTRIAL CLASSIFICATION: DAIRY PRODUCTS [2020] IRS NUMBER: 363442829 STATE OF INCORPORATION: IL FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-50073 FILM NUMBER: 03672670 BUSINESS ADDRESS: STREET 1: 6431 W OAKTON CITY: MORTON GROVE STATE: IL ZIP: 60053 BUSINESS PHONE: 7089671010 MAIL ADDRESS: STREET 1: 6431 W OAKTON CITY: MORTON GROVE STATE: IL ZIP: 60053 SC 13D 1 sch13d_11903c.txt SCHEDULE 13D - EDWARD SMOLYANSKY ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 LIFEWAY FOODS, INC. - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, No Par Value - -------------------------------------------------------------------------------- (Title or Class of Securities) 531914109 - -------------------------------------------------------------------------------- (CUSIP Number) Julie Smolyansky, CEO Lifeway Foods, Inc. 6431 West Oakton St. Morton Grove, IL 60053 (847) 967-1010 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Received Notices and Communications) July 1, 2002 - -------------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box |_|. NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See ss. 240.13d-7(b) for other parties to whom copies are to be sent. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). ================================================================================ CUSIP No. 531914109 =================== 1) Name of Reporting Person: Edward Smolyansky. 2) Check the Appropriate Box if a member of a Group: (a) |_| (b) |_| 3) SEC Use Only 4) Source of Funds (See Instructions): OO 5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) |_| 6) Citizenship or Place of Organization: U.S. CITIZEN Number of Shares Beneficially Owned by Each Reporting Person With: 7) Sole Voting Power: 80,000 (1.9%) 8) Shared Voting Power: -- 9) Sole Dispositive Power: 80,000 (1.9%) 10) Shared Dispositive Power: -- 11) Aggregate Amount Beneficially Owned by Each Reporting Person: 80,000 shares (1.9%) 2 CUSIP No. 531914109 =================== 12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) |X| 13) Percent of Class Represented by Amount in Row (11): 1.9% 14) Type of Reporting Person: IN 3 ITEM 1. SECURITY AND ISSUER. The class of equity securities to which this statement on Schedule 13D relates is the common stock, no par value (the "Lifeway Common Stock") of Lifeway Foods, Inc., an Illinois corporation, with its principal executive offices at 6431 W. Oakton Street, Morton Grove, Illinois 60053 (the "Issuer"). ITEM 2. IDENTITY AND BACKGROUND. (a) This statement is filed by Edward Smolyansky, an individual resident of Illinois. (b) The business address of Edward Smolyansky is 6341 W. Oakton Street, Morton Grove, Illinois 60053. (c) Edward Smolyansky's principal occupation is as the Director of Finance of Issuer. (d) Edward Smolyansky has not been convicted in any criminal proceeding in the last five years. (e) Edward Smolyansky has not been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction, as a result of which she is or was subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. (f) Edward Smolyansky is a U.S. citizen. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. No funds or other consideration were involved in the acquisition described in this Schedule 13D. The acquisition of Lifeway Common Stock described in this Schedule 13D took place due to the qualification of Ludmila Smolyansky (Edward Smolyansky's mother) as the independent executor of the Estate of Michael Smolyansky (the "Estate") under the Illinois Probate Act of 1975 (755 ILCS ss.5-1/1 et seq.). Michael Smolyansky died on June 9, 2002. Ludmila Smolyansky, his spouse, was appointed independent executor of the Estate on July 1, 2002 by Order of the Circuit Court of Cook County, Illinois, County Department, Probate Division (the "Probate Court"), and pursuant to that certain Last Will and Testament of Michael Smolyansky, dated February 2, 1990 (the "Will"). Edward Smolyansky, the son of Ludmila Smolyansky, acquired indirect beneficial ownership of the Lifeway Common Stock described herein at the time of Ludmila Smolyansky's appointment as independent executor. ITEM 4. PURPOSE OF TRANSACTION. As a result of the operation of the Will and Ludmila Smolyansky's status as the independent executor of the Estate, Edward Smolyansky has indirect beneficial ownership of 2,138,138 shares of Lifeway Common Stock (the "Shares"), 4 which are directly owned by the Estate. Edward Smolyansky considers his indirect beneficial ownership of the Shares to exist solely for the purposes of Section 13(d) of the Securities Exchange Act of 1934 (the "Exchange Act"). Edward Smolyansky indirectly acquired the Shares not by his own action or initiative, but solely due to his status as the son of Ludmila Smolyansky, the operation of Illinois law pursuant to the Will and the Order of the Probate Court. Pursuant to the terms of the Will, Michael Smolyansky bequeathed and devised one-third of the Shares to Ludmila Smolyansky, General Manager and Chairman of the Board of Directors of Issuer, and one-third of the Shares to each of Julie Smolyansky and Edward Smolyansky, Director of Finance of the Issuer. Accordingly, at the conclusion of the administration of the Estate, the 2,138,138 shares of Lifeway Common Stock presently held in the Estate will be distributed among Ludmila Smolyansky, Julie Smolyansky and Edward Smolyansky per the terms of the Will, subject to any disclaimer of property. At the time of this filing, the administration of the Estate had not yet concluded and disclaimers of property had not been made final. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER (a) Under Section 13(d) of the Exchange Act, Edward Smolyansky is deemed to have beneficial ownership of 2,353,338 shares of Lifeway Common Stock, representing 55.2% of the total outstanding Lifeway Common Stock. Edward Smolyansky's total beneficial ownership of 2,353,338 shares of Lifeway Common Stock consists of the following: (i) 8,000 shares of Lifeway Common Stock (representing 0.1% of the total outstanding Lifeway Common Stock) directly owned by the Smolyansky Family Foundation, of which Ludmila Smolyansky (Edward Smolyansky's mother) is a trustee, (ii) 47,200 shares of Lifeway Common Stock (representing 1.1% of the total outstanding Lifeway Common Stock) directly owned by Ludmila Smolyansky, (iii) 80,000 shares of Lifeway Common Stock (representing 1.9% of the total outstanding Lifeway Common Stock) directly owned by Julie Smolyansky (Edward Smolyansky's sister), (iv) 2,138,138 shares of Lifeway Common Stock (representing 50.1% of the total outstanding Lifeway Common Stock) acquired by the Estate and (v) 80,000 shares of Lifeway Common Stock (representing 1.9% of the total outstanding Lifeway Common Stock) directly owned by Edward Smolyansky. Pursuant to Securities and Exchange Commission (SEC) Rule 13d-4, Edward Smolyansky disclaims from beneficial ownership (i) the 8,000 shares of Lifeway Common Stock (representing 0.1% of the total outstanding Lifeway Common Stock) directly owned by the Smolyansky Family Foundation, (ii) the 47,200 shares of Lifeway Common Stock (representing 1.1% of the total outstanding Lifeway Common Stock) directly owned by Ludmila Smolyansky, (iii) the 80,000 shares of Lifeway Common Stock (representing 1.9% of the total outstanding Lifeway Common Stock) directly owned by Julie Smolyansky and (iv) the 2,138,138 shares of Lifeway Common Stock (representing 50.1% of the total outstanding Lifeway Common Stock) acquired by the Estate. 5 (b) Edward Smolyansky has sole power to vote 80,000 shares of Lifeway Common Stock (representing 1.9% of the total outstanding Lifeway Common Stock) that he directly owns, and does not share voting power for any shares of Lifeway Common Stock. Edward Smolyansky has sole dispositive power over the 80,000 shares of Lifeway Common Stock he directly owns and does not share dispositive power for any shares of Lifeway Common Stock. (c) Not applicable. (d) Proceeds from the sale of any the 2,138,138 shares of Lifeway Common Stock indirectly acquired by Edward Smolyansky (due to his relationship to Ludmila Smolyansky, who acquired these 2,138,138 shares in her capacity as independent executor of the Estate) would inure solely to the Estate for the duration of the administration of the Estate. Upon the conclusion of the administration of the Estate, the 2,138,138 shares of Lifeway Common Stock will be transferred as described in Item 4, above. At the time of this filing, the administration of the Estate had not yet concluded and disclaimers of property had not been made final. (e) Not applicable. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. Edward Smolyansky is the son of Ludmila Smolyansky and the brother of Julie Smolyansky. Ludmila Smolyansky is the independent executor of the Estate pursuant to the terms of the Will and of the Order of the Probate Court entered on July 1, 2002. As the independent executor of the Estate, she is responsible for its administration pursuant to the Illinois Probate Act of 1975 (755 ILCS ss.5-1/1 et seq.). ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. Exhibit 20.1 Last Will and Testament of Michael Smolyansky. Exhibit 20.2 Order of the Circuit Court of Cook County, Illinois, County Department, Probate Division, dated July 1, 2002. 6 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: April 30, 2003 /s/ Edward Smolyansky -------------------------- Edward Smolyansky 7 EX-20.1 3 exh20-1_11903c.txt LAST WILL AND TESTAMENT OF MICHAEL SMOLYANSKY EXHIBIT 20.1 ------------ LAST WILL AND TESTAMENT OF MICHAEL SMOLYANSKY ------------------ I, MICHAEL SMOLYANSKY, of the Village of Skokie, County of Cook, and State of Illinois, being of sound and disposing mind and memory, do hereby make, publish and declare this my Last Will and Testament, expressly revoking any and all prior Wills or Codicils by me made. FIRST: I direct that my just debts, funeral expenses, and the costs and expense of administration of my estate shall be paid as soon after my demise as may be practicable. SECOND: I give, devise and bequeath all of my estate, of whatever kind and character, whether real, personal or mixed, and wheresoever situate, in manner following: A. ONE THIRD (1/3) thereof to my beloved wife, LUDMILA SMOLYANSKY, as and for her own property forever. If my said wife predeceases me or in the event of our demise in a common disaster, then I direct that the share she would have taken had she survived me be distributed to my beloved children, EDWARD SMOLYANSKY and JULIE SMOLYANSKY, in equal shares, share and share alike, as and for their own property forever, subject to the provisions of Paragraph THIRD hereof. B. TWO THIRDS (2/3) thereof to my said children, EDWARD SMOLYANSKY and JULIE SMOLYANSKY, in equal shares, share and share alike, as and for their own property forever, subject to the provisions of Paragraph THIRD hereof. If a child of mine predeceases me and leaves no child or children surviving, then I direct that the share which such deceased child would have taken had he or she survived me be distributed to the then living child or children of such deceased child in equal shares, share and share alike, as and for their own property forever. If a child of mine predeceases me and leaves no child or children surviving, I direct that the share such deceased child would have taken had he or she survived me be distributed to my surviving child, as hereinabove provided. THIRD: If property becomes distributable to either of my said children pursuant to the terms of Paragraph SECOND hereof, before he or she shall have attained the age of twenty-one (21) years, I hereby direct my Executor to distribute the same to my trustees, hereinafter designated and as hereinafter set forth. I direct that any funds which may come into possession of the Trustees shall be deposited in savings accounts or certificates of deposit in such federally insured savings and loan or banking institutions as the Trustees may from time to time designate. Such deposits and all other property held by the Trustees shall be in the name of the Trustees, as Trustees for each person entitled thereto as beneficiary thereof. All interest or income received by the Trustees for the account of the beneficiary shall be retained by the Trustees and added to principal. The Trustees may, however, pay to or on behalf of any such beneficiary such sums from interest, income or principal as the Trustees, in the Trustees' sole discretion, may deem necessary or advisable form time to time for such 8 beneficiary's medical care, education, maintenance and welfare. In this connection, the Trustees may take into consideration the assets and income available to each beneficiary from all sources known to the Trustees. I direct that the Trustees may use or disburse the said trust funds or trust property, prior to distribution thereof, as herein set forth, in any one or more of the following ways: (a) by disbursing same directly to a beneficiary; (b) by disbursing same to a relative or friend of a beneficiary to be expended by such relative or friend for the medical care, education, maintenance and welfare of a beneficiary; or (c) by the Trustees expending the same for the medical care, education, maintenance and welfare of a beneficiary. When any such beneficiary shall have attained the age of twenty-one (21) years my Trustees shall, upon appropriate written request and receipt therefor, distribute to such beneficiary all monies and property then held for, or on deposit for, the benefit of such person, including principal and interest thereon and thereafter, the Trust shall be terminated. Should any beneficiary for whom the Trustees held funds or property hereunder die before he or she shall have received distribution of the trust funds and property due him or her, I direct that all such funds then on deposit or property held for such deceased beneficiary shall be distributed strictly pursuant to the terms of Paragraph THIRD hereof. I hereby nominate, constitute and appoint my dear brother, YURI SMOLYANSKY and my attorney, SIDNEY EDELSTEIN, or the survivor of them as Trustees hereunder. FOURTH: If my said wife does not survive me, I hereby nominate, constitute and appoint my said brother, YURI SMOLYANSKY, as Guardian of the person of any child of mine who has not attained the age of eighteen (18) years at the date of my demise. FIFTH: The interest of any beneficiary, legatee or devisee hereunder shall not be grantable, saleable, assignable, or otherwise transferable, nor shall it be subject to seizure or sequestration for the payment of any debts, judgments, or maintenance owed by said beneficiary, legatee, or devisee, nor be transferable by operation of law in the event of bankruptcy, insolvency or otherwise. No person shall acquire any right, title or interest of any legatee, devisee, or beneficiary hereunder by reason of any grant, sale, assignment or transfer. SIXTH: I hereby nominate, constitute and appoint my said wife, LUDMILA SMOLYANSKY, as Executor of this, my Last Will and Testament. In the event she shall be unwilling or unable to act as such Executor, then I hereby nominate, constitute and appoint my said brother, YURI SMOLYANSKY, and my said attorney, SIDNEY EDELSTEIN, or the survivor of them, as successor Executors in her place and stead. I direct that no security or surety of any kind shall be required on any fiduciary bond which any Executor, Trustee or Guardian name hereunder shall be required to furnish. SEVENTH: I hereby give to my said Executor, duly qualified to act hereunder, all powers and discretions granted to independent representatives by the laws of the State of Illinois. Page Two IN WITNESS WHEREOF, I have hereunto set my hand to this, my Last Will and Testament, consisting of five (5) typewritten pages, the following page included, on each of which I have placed my signature, this 2nd day of February, 1990. /s/ Michael Smolyansky ----------------------- MICHAEL SMOLYANSKY We, the undersigned, do hereby certify that the above and foregoing instrument was, on the date it bears, signed, made, declared and published by MICHAEL SMOLYANSKY, as and for his Last Will and Testament in our presence. We further certify that we, at his request and in his presence, and in the presence of each other, have hereunto subscribed our names as witnesses thereto, we and each of us believing the said Testator to be of sound and disposing mind and memory at the time of his so signing. /s/ Mark Edelstein residing at 6730 N. Central - ------------------------------------------------- Chicago, IL /s/ Teresa M. Schaefer residing at 5734 W. Seminole - ------------------------------------------------- Chicago, IL STATE OF ILLINOIS SS. COUNTY OF COOK AFFIDAVIT --------- We, the attesting witnesses to the Last Will and Testament of MICHAEL SMOLYANSKY, on oath state that each of us present was present and saw the Testator sign the Last Will and Testament, of which this Affidavit is a part, in our presence. The said Last Will and Testament was attested by each of us in the presence of the Testator, and each of us believed the Testator to be of sound mind and memory at the time of signing. /s/ Mark Edelstein --------------------------- /s/ Teresa M. Schaefer --------------------------- Subscribed and sworn to before me this 2nd day of February, 1990. /s/ Donald Solomon - ------------------ Notary Public Page Three EX-20.2 4 exh20-2_11903c.txt ORDER OF THE CIRCUIT COURT OF COOK COUNTY EXHIBIT 20.2 ------------ Order Admitting Will to Probate and Appointing Representative (Rev. 3/27/01) CCP 0319 ================================================================================ IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT-PROBATE DIVISION ESTATE OF | NO. 02 P 005082 | ----------- | DOCKET 092 | --------- MICHAEL SMOLYANSKY, | PAGE 190 - ---------------------------------- ---------- DECEASED ORDER ADMITTING WILL TO PROBATE AND APPOINTING REPRESENTATIVE ON PETITION FOR ADMISSION TO PROBATE OF THE WILL OF THE DECEDENT AND FOR ISSUANCE OF LETTERS OF OFFICE, THE WILL HAVING BEEN PROVED AS PROVIDED BY LAW; IT IS ORDERED THAT: 1. THE WILL OF MICHAEL SMOLYANSKY DATED ----------------------------------------------------------------------- February 2, 1990 AND NUMBERED W -------------------- ----------------- ----------------- 4101 BE ADMITTED TO PROBATE; (AND CODICIL DATED , ). -------- ------------ ---- 2. LETTERS OF OFFICE AS independent executor -------------------------------------------------- (SUPERVISED (INDEPENDENT (ADMINISTRATOR WITH (INDEPENDENT ADMINISTRATOR EXECUTOR) EXECUTOR) WILL ANNEXED) WITH WILL ANNEXED) [_] 4234 [_] 4253 [_] 4254 [_] 4255 ISSUED TO Ludmila Smolyansky ; ---------------------------------------------------------------------- *3. THE REPRESENTATIVE MUST FILE AN INVENTORY WITHIN 60 DAYS. 4192 DATE: July 1, 2002 -------------------------- ATTY. NO.: 33462 ------------------------------- NAME: Ryann Whalen ENTER: ------------------------------------ ATTY. FOR PETITIONER: Ludmila Smolyansky /s/ R.Cusack #400 --------------------- -------------------------------- JUDGE JUDGE'S NO. 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