As filed with the Securities Exchange Commission on September 12, 1997
Registration No. 333-32625
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
Amendment No. 1
to
Form S-3
Registration Statement under The Securities Act of 1933
GALAXY FOODS COMPANY
(Name of Small Business Issuer in its Charter)
Delaware 2022 25-1391475
(State or other (Primary Standard (IRS Employer
jurisdiction Industrial Identification No.)
of incorporation) Classification Code
Number)
2441 Viscount Row, Orlando, Florida 32809
Telephone: (407) 855-5500
(Address and Telephone Number of Principal Executive Offices)
ANGELO S. MORINI, PRESIDENT
Galaxy Foods Company
2441 Viscount Row, Orlando, Florida 32809
Telephone: (407) 855-5500
(Name, address and telephone number of agent for service)
COPIES TO:
KENNETH C. WRIGHT, ESQUIRE
Baker & Hostetler LLP
200 South Orange Avenue, Suite 2300
Orlando, Florida 32801
Telephone: (407) 649-4001
Approximate Date of Proposed Sale to the Public: As soon
as practicable after the registration statement becomes effective.
<PAGE> 2
If the only securities being registered on this Form are
being offered pursuant to dividend or interest reinvestment
plans, please check the following box.
If any of the securities being registered on this Form are
to be offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, check the following
box: X
If this Form is filed to register additional securities for
an offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same offering.
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the
earlier effective registration statement for the same offering.
If delivery of the prospectus is expected to be made
pursuant to Rule 434, please check the following box.
The registrant hereby amends this registration statement on
such date or dates as may be necessary to delay its effective
date until the registrant shall file a further amendment which
specifically states that this registration statement shall
thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement
shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
CALCULATION OF REGISTRATION FEE
Proposed
Maximum
Proposed Aggregate Amount of
Title of Each Additional Maximum Offering Additional
Class of Amount to Offering Price Registrati
Securities be Price of on Fee (1)
to be Registered Per Share Additional
Registered (1) (2) Shares
Common Stock 250,000 $.9375 $234,375 $71.02
$.01 par value
Total $71.02
Registration
(1) The filing fee for 3,557,500 shares of Common Stock ($1,110.37),
based upon a proposed maximum aggregate offering price of $3,664,225.00,
was paid in the original filing of the Registration Statement on Form S-3 on
August 1, 1997.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c). Based upon the average of the closing bid and
ask prices for the Company's Common Stock as reported on the National
Association of Securities Dealers, Inc. inter-dealer quotation system on
September 4, 1997, of $.875 and $1.00, respectively.
(3) To be offered by the Selling Stockholders.
<PAGE>3
PROSPECTUS Subject to Completion
GALAXY FOODS COMPANY September 12, 1997
3,807,500 Shares
Common Stock, $.01 par value
All of the shares covered by this Prospectus are being sold
for the account of certain existing stockholders of GALAXY FOODS
COMPANY, a Delaware corporation (the "Company"), who are listed
and described in this Prospectus (the "Selling Stockholders") or
by pledgees, donees, transferees or other successors in interest
that receive such shares by pledge or foreclosure of a pledge,
gift, distribution or other non-sale transfer. The Company will
realize no proceeds from the sale of any of these shares.
The securities offered hereby involve a high degree of risk,
and should be considered only by persons who can afford the loss
of their entire investment. See "Risk Factors" beginning on page
3.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
Underwriting Proceeds
Common Stock, Price to Discounts to the
Par Value $.01 Public and Company (3)
Commission(2)
Prevailing Not Not
Per Market Applicable Applicable
Share.................. Value (1)
(1) The shares are quoted on the electronic inter-dealer
quotation system operated by Nasdaq, Inc., a subsidiary of the
National Association of Securities Dealers, Inc. (the "NASDAQ
System"), in the category of Small-Cap4 Issues, under the symbol
"GALX." The distribution of the shares by the Selling
Stockholders may be effected in one or more transactions that may
take place in the over-the-counter market, including ordinary
broker's transactions, privately negotiated transactions, or
through sales to one or more dealers for the resale of such
shares as principals, at market prices prevailing at the time of
sale, at prices related to such prevailing market prices, or at
negotiated prices. See "Plan of Distribution." On September 4,
1997, the closing bid and asked prices for a share of the
Company's Common Stock as quoted on the NASDAQ System was $.875
and $1.00, respectively.
(2) There is no underwriter with respect to this offering and
each Selling Stockholder will determine the time of sales of
shares made pursuant hereto. The Selling Stockholders will be
responsible for any commissions for the sale of the shares
offered by this Prospectus. Usual and customary or specifically
negotiated brokerage commissions or fees may be paid by the
Selling Stockholders in connection with such sales. There is no
minimum required purchase and there generally is no arrangement
to have funds received by such Selling Stockholder placed in an
escrow, trust or similar account or arrangement. See "Plan of
Distribution."
(3) The Company will realize no proceeds from this offering.
The expenses of this offering are being paid by the Company
pursuant to its agreement with the Selling Stockholders. See
"Plan of Distribution."
It is anticipated that the Selling Stockholders may from
time to time sell all or a part of the shares of Common Stock
covered by this Prospectus in one or more transactions that may
take place in the over-the-counter market including ordinary
broker's transactions, privately negotiated transactions or
through sales to one or more dealers for the resale of such
shares as principals, at market prices prevailing at the time of
sale, at prices related to such prevailing market prices, or at
negotiated prices. Upon any sale of the shares of Common Stock
offered hereby, Selling Stockholders, brokers executing sales
orders on their behalf, and dealers to whom such persons or
entities may sell such shares may, under certain circumstances,
be deemed to be "underwriters" within the meaning of the
Securities Act of 1933, as amended (the "33 Act").
Broker-Dealers effecting sales of shares of Common Stock
pursuant to this Prospectus should carefully review the
restrictions on the use hereof as described in "Plan of
Distribution,Restrictions on Use of Prospectus."
The date of this Prospectus is [_______________, 1997].
<PAGE> 4
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "34 Act"), and in
accordance therewith is required to file periodic reports, proxy statements
and other information with the Securities and Exchange Commission (the
"SEC") relating to its business, financial statements and other matters.
Additionally, the Company has filed a certain Registration Statement on
Form S-3 (SEC File No. 333-32625), relating to this offering by Selling
Stockholders. As permitted by the rules and regulations of the SEC, this
Prospectus omits certain information, exhibits, and undertakings contained
in the Registration Statement. Copies of the Registration Statement and
exhibits thereto, as well as such periodic reports, proxy statements and
other information may be inspected and copied, at prescribed rates, at the
public reference facilities maintained by the SEC at Room 1024, Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549. Copies also may be
obtained at the Regional Offices of the SEC located at (1) Northeast
Regional Office, 7 World Trade Center, Suite 1300, New York, New York
10048; and (2) 500 West Madison Street, Suite 1400, Chicago, Illinois
60611. Copies of such material also can be obtained at prescribed rates
through The National Association of Securities Dealers Association at 1735
K Street, N.W., Washington, D.C. 20006-1506.
The SEC maintains a Web site that contains reports, proxy and
information statements and other information regarding registrants that
file electronically with the SEC, which includes the Company. The address
of such site is http://www.sec.gov.
Statements contained in this Prospectus relating to the contents of
any contract or other document are not necessarily complete, and in each
instance reference is made to the copy of such contract or other document
filed as an exhibit to, or incorporated by reference in, the Registration
Statement, each such statement being qualified in all respects by such
reference.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The Company's Annual Report on Form 10-KSB for the year ended
March 31, 1997 and Quarterly Report on Form 10-QSB for the quarter ended
June 30, 1997, are incorporated by reference herein and made a part hereof.
All documents filed by the Company with the SEC pursuant to Section 13(a),
13(c), 14 or 15(d) of the 34 Act subsequent to the date of this Prospectus
and prior to the termination of the offering represented hereby shall be
deemed to be incorporated by reference and to be a part of this Prospectus
from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in any
subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such a statement. A statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person who receives a
Prospectus, upon written or oral request, a copy of any and all of the
information that has been incorporated by reference in this Prospectus (not
including exhibits to the information that is incorporated by reference
unless the exhibits are themselves specifically incorporated by reference).
Such a request should be directed to Galaxy Foods Company, 2441 Viscount
Row, Orlando, Florida 32809, Attention: Investor Relations, or if by
telephone, (407) 855-5500.
<PAGE> 5
RISK FACTORS
An investment in the Shares offered hereby involves a high degree of
risk and should not be purchased by persons who cannot afford the loss of
their entire investment. In addition to the factors set forth elsewhere in
this Prospectus, the following risk factors with respect to the Company
should be carefully considered:
Operating History. The Company reported net income of $23,121 for the
three-month period ended June 30, 1997 (unaudited) and net losses of
$2,033,639 for the three-month period ended June 30, 1996 (unaudited),
$4,331,066 for the fiscal year ended March 31, 1997, and $6,550,869 for the
fiscal year ended March 31, 1996, or $.00, $.06, $.12, and $.25 per share,
respectively (based on the weighted average number of shares of Common
Stock outstanding during each period). Additionally, for the three-month
periods ended June 30, 1997 and 1996 (unaudited), and for the fiscal years
ended March 31, 1997 and 1996, the Company's operating income (loss) was
$53,049, $(473,323), $(2,783,937), and $(3,466,649), respectively.
Further, until fiscal 1996, the Company operated since its inception with a
negative working capital position. As of March 31, 1997, the Company had
$4,094,750, in current assets, and $2,263,544, in current liabilities. The
future success of the Company will depend, among other factors, upon
management's ability to increase sales, restore and maintain profitable
operations, and obtain favorable financing arrangements. There can be no
assurance that the Company will be able to increase sales, become
profitable, attain improved operating results or obtain favorable financing
arrangements.
Possible Need for Additional Financing. The Company will not receive
any proceeds from this offering. In the event that the Company does not
generate cash flow sufficient to satisfy future cash requirements, the
Company will be required to seek additional financing in the near future.
If additional financing is required, there is no assurance that financing
will be available, or if available, that it can be obtained on terms
favorable to the Company. Additional financing may require the Company to
issue additional debt or equity securities which may rank senior to the
shares of Common Stock and which could dilute any investment made in the
Company. In addition, absent the Company's ability to obtain additional
funding, there could be a material adverse effect on the Company's business
and prospects.
Lack of Dividends. It is the present policy of the Company to retain
any future earnings to finance growth and development. Accordingly, it is
unlikely that dividends will be paid by the Company in the foreseeable
future.
Extensive Shareholdings by Management. As of September 4, 1997,
Angelo S. Morini, the Company's founder, President, and Chief Executive
Officer, owned approximately 39.7% of the issued and outstanding shares of
the Company's Common Stock, and held certain rights and options to acquire
an additional 1,091,500 shares of Common Stock. In the event Mr. Morini
exercises his rights and options, and acquires all of the 1,091,500 shares,
and assuming that no other options or warrants are exercised or granted,
Mr. Morini will own approximately 41.5% of the outstanding Common Stock.
In the event all unexercised rights, options, and warrants become vested
and are exercised (including Mr. Morini's), as adjusted to reflect such
issuance and assuming no other options or warrants are granted, Mr. Morini
will own approximately 36.0% of the outstanding Common Stock. Since no
provision exists for cumulative voting, investors who purchase Common Stock
may be unable to elect any members of the Board of Directors or exercise
significant control over the Company or its business. See "Description of
Capital Stock."
Potential Sales and Issuances of Additional Stock. As of September 4,
1997, there were outstanding options and warrants to acquire up to
9,878,895 shares of Common Stock, including the 1,091,500 shares subject to
options held by Mr. Morini, in addition to the 60,702,202 shares of Common
Stock of the Company issued and outstanding as of that date. As of
September 4, 1997, a total of 24,297,798 shares are authorized but not yet
issued and outstanding, including 9,878,895 shares which have been reserved
for issuance upon exercise of options and warrants that have been granted
by the Company. A substantial portion of such options and warrants are "in
the money" and are currently exercisable. "In the money" generally means
that the current market price is above the purchase price of the shares
subject to the warrant or option. The issuance of additional Common Stock
upon the exercise of options and warrants will dilute the proportionate
ownership of the then current shareholders of the Company.
<PAGE> 5
Additionally, the Company may offer additional securities in private
and/or public offerings in order to raise working capital and retire or
refinance its indebtedness. Any such issuance could adversely affect the
market price of the Common Stock or result in substantial dilution to
existing holders of Common Stock.
Broker-Dealer Sales of Company Common Stock. The Company's Common
Stock is covered by an SEC rule that imposes additional sales practice
requirements on broker-dealers who sell such securities to persons other
than established customers and accredited investors (generally,
institutions with assets in excess of $5,000,000 or individuals with net
worth in excess of $1,000,000 or annual income exceeding $200,000 or
$300,000 jointly with their spouses). For transactions covered by this
rule, the broker-dealer must make a special suitability determination for
the purchaser and receive the purchaser's written agreement to the
transaction prior to the sale. Consequently, the rule may affect the
ability of broker-dealers to sell the Company's securities, and also may
affect the ability of purchasers in this offering to sell their shares in
the secondary market.
Market Overhang. As of September 4, 1997, approximately 32,287,783
shares of the 60,702,202 shares of issued and outstanding Common Stock of
the Company were freely tradable (unless acquired by an "affiliate" of the
Company) under the 33 Act or issued without restrictive legend in a series
of transactions exempt from the registration requirements of the 33 Act in
accordance with the requirements of Regulation S promulgated thereunder.
Of the remaining 28,414,419 shares of Common Stock issued and outstanding,
and 9,878,895 additional shares of Common Stock which the Company is
obligated to issue pursuant to outstanding options and warrants, 2,307,500
shares so issued or issuable are included for sale pursuant to this
Prospectus.
All of the shares which are not freely tradable are "restricted
securities" within the meaning of Rule 144 promulgated by the SEC under the
33 Act ("Rule 144"), and may be sold in open market transactions after the
holding period under Rule 144 with respect thereto has been met. As to
shares subject to outstanding options and warrants, the one-year holding
period generally will not begin until the shares underlying such options or
warrants actually have been acquired. After the one-year holding period
has been met, each holder generally may sell, every three months in
brokerage transactions, an amount equal to the greater of one percent of
the Company's outstanding Common Stock or the amount of the average weekly
trading volume during the four weeks preceding the sale. After two years,
unless any such holder is an "affiliate" of the Company, such sales can be
made without restriction. See also, "Plan of Distribution,Manner of
Distribution."
<PAGE> 6
Because the sales pursuant to this Prospectus will not, and the resale
of any additional shares which may be attempted under Rule 144 or
Regulation S may not, be effected through an underwriter pursuant to a firm
commitment agreement, there will be a substantial number of additional
shares which may be available for sale on the market at one time without
any control over the timing or volume of sales thereof by the Company or
any third party. The Company cannot foresee the impact of such potential
sales on the market, but it is possible that if a significant percentage of
such available shares are attempted to be sold within a short period of
time, the effect on the market may be negative. It is also unclear as to
whether or not the market for the Company's Common Stock could absorb a
large number of attempted sales in a short period of time, regardless of
the price at which the same might be offered. It is noted that even if a
substantial number of sales are not effected within a short period of time,
the mere existence of this "market overhang" could have a negative effect
on the market for the Company's Common Stock and the Company's ability to
raise additional capital or refinance its indebtedness.
Reliance Upon Key Personnel. The success of the Company will be
largely dependent upon the personal efforts and abilities of Angelo S.
Morini, its Chief Executive Officer. Should Mr. Morini cease to be
affiliated with the Company before a qualified replacement is found, there
could be a material adverse effect on the Company's business and prospects.
Mr. Morini entered into an employment agreement with the Company on
October 10, 1995. The term of such employment agreement is five years but
is terminable by Mr. Morini in the event of a change of control. In the
event of a change in control, or in the event that Mr. Morini is terminated
for "cause" (as defined in the employment agreement), Mr. Morini has agreed
that, for a period of one year following the date that his employment with
the Company terminates, he shall not engage himself, directly or
indirectly, in any business substantially similar or provide service or
products to the Company's customers. The Company currently is the
beneficiary of a key man life insurance policy on Mr. Morini's life in the
amount of $250,000, and a term life policy in the amount of $750,000. This
sum would likely not be sufficient to compensate the Company for the loss
of Mr. Morini's services until a suitable replacement can be engaged.
<PAGE> 7
Intense Competition. The food industry is highly competitive. In
particular, the Company competes with major companies such as Kraft (which
produces products under the Kraft Free label), Borden's, and ConAgra
(which produces products under the Healthy Choice label), each of which
has substantially greater research and development, marketing, financial
and human resources than the Company. In addition, competitors may succeed
in developing new or enhanced products which are better than any that may
be sold or developed by the Company, and such companies may also prove to
be more successful than the Company in marketing and selling such products.
There can be no assurance that the Company will be able to compete
successfully with any of these companies or achieve a greater market share
than it currently possesses.
Uncertainties Regarding Trademark Protection; No Patent Protection.
The Company owns the trademark formagg, which is registered in the United
States, Japan, Canada, France, Ireland, Israel, Greece and the United
Kingdom, and the trademarks Lite Bakery, Galaxy, Labella's, Soyco,
Veggy Singles and Soymage, each of which is registered in the United
States, and has applied for registration of the trademarks and Lite "n"
Less, Health Value Foods, Soy Singles and Pretzel Nuts in the United
States. The Company believes these trademarks are important means of
establishing consumer recognition of its products. However, there can be
no assurance as to the breadth or degree of protection that these
trademarks may afford the Company, or that the Company will have the
financial resources to engage in litigation against any infringement of its
trademarks, or as to the eventual outcome of any litigation if brought. In
addition, although the Company owns the trademark for the name Galaxy, it
has applied for but has not yet received registration of its current
design.
While the Company believes that its formulas, processes and
manufacturing equipment are proprietary, the Company has not sought, and
does not intend to seek, patent protection for such technology. In not
seeking patent protection, the Company is instead relying on the complexity
of its technology, on trade secrecy laws, and employee confidentiality
agreements. However, there can be no assurance that other companies will
not acquire information which the Company considers to be proprietary or
will not independently develop equivalent or superior products or
technology and obtain patent or similar rights with respect thereto.
Although the Company believes that its technology has been independently
developed and does not infringe the patents of others, certain components
of the Company's manufacturing equipment and processes could infringe
existing or future patents, in which event the Company may be required to
modify its equipment designs or processes or obtain a license. No
assurance can be given that the Company will be able to do so in a timely
manner or upon acceptable terms and conditions and the failure to do either
of the foregoing could have a material adverse effect on the Company.
Uninsured Losses. The Company has acquired comprehensive insurance
for the Company's property, including liability, fire and extended
coverage, which is customary for similar property. However, there are
certain types of losses which are either uninsurable or not economically
insurable within the Company's budget. Should an uninsured event occur
with respect to its property, the Company could suffer additional losses.
Reliance on Key Customers. For the three-month periods ended June 30,
1997 and 1996 (unaudited) and fiscal years ended March 31, 1997 and 1996,
the Company had net sales of $5,883,454, $3,354,980, $17,171,496, and
$3,950,455, respectively. Foodservice Purchasing Co-op, and H.E. Butt
Grocery each represented more than 5% of the Company's gross sales for
fiscal 1997, and Foodservice Purchasing Co-op, Dutch Farms, Tropical Cheese
Industries, and H.E. Butt Grocery each represented more than 5% of the
Company's gross sales for the three-month period ended June 30, 1997
(unaudited). The Company does not have any contractual arrangements with
any of its customers which require any minimum level of purchases. In the
event any of these customers were to cease to distribute or purchase the
Company's products, the Company would have to seek additional distribution
channels, and its business could be materially adversely affected.
Reliance on Foreign/Key Suppliers. Due to the export supports and
subsidies provided by such countries as New Zealand and members of the
European Economic Community, suppliers from such countries are often able
to supply raw materials to the Company at prices lower than domestic
suppliers. Accordingly, the Company purchases its major ingredient, casein
(a milk protein), from foreign suppliers. Although the Company believes
that it could obtain casein from domestic sources if a foreign supply of
casein were reduced or terminated, no assurance can be given that it would
be able to do so and, in any event, the interruption in the Company's
production could have an adverse effect on the Company's business. Because
casein is purchased by the Company from foreign suppliers, its availability
is subject to a variety of factors, including federal import regulations.
In the event the relevant export supports or subsidies are reduced or
eliminated or the United States takes retaliatory action or otherwise
establishes trade barriers with any of the countries which supplies casein
to the Company, such an event could have a material adverse affect on the
Company and its operations. Moreover, exchange rate fluctuations and/or
the imposition of import quotas or tariffs could, have an adverse effect on
the Company's business and its ability to compete with conventional cheese
companies that do not rely on foreign suppliers.
<PAGE> 8
For the three-month periods ended June 30, 1997 and 1996 (unaudited)
and for the fiscal years ended March 31, 1997 and 1996, the Company
purchased $1,907,635, $685,365, $3,614,421 and $1,398,230, respectively, of
casein, canola and other oils, and other ingredients, which are the
principal raw materials used to manufacture the Company's products.
Principal suppliers of the Company's raw materials are Besnier-Scerma
U.S.A., Van Waters & Rogers, Archer Daniels Midland Co., Armour Foods, Food
Ingredient Sales, Inc., and Grain Processing Corporation. Generally, the
Company does not have any contractual arrangements with any of these
entities, except for short-term agreements for periods of less than six
months. If any of these entities were to cease to supply casein, canola
oil, enzymes, or chemicals to the Company, the Company would have to seek
additional sources of its major raw materials, and its business could be
materially adversely affected.
Government Regulation. The Company is subject to extensive regulation
by federal, state, and local governmental authorities regarding the
quality, purity, manufacturing, distribution, and labeling of food
products. The Company's manufacturing facility is subject to regulation
and inspection by the United States Department of Agriculture, the United
States Food and Drug Administration, the Florida Department of Agriculture
and Consumer Services, and the Orange County, Florida, Department of
Health. A finding of a failure to comply with one or more regulatory
requirements can result in the imposition of sanctions including closing of
all or a portion of a facility for a period during which the manufacturer
is permitted to attempt to remedy the alleged violations. In addition to
licensing requirements, a regulatory agency could declare a product
hazardous or limit its use or require a recall of a product.
The Company believes that it is currently in substantial compliance
with all applicable governmental regulations regarding its current products
and has all material government permits, licenses, qualifications, and
approvals required for its operations. However, there can be no assurance
that the Company will be able to continue to comply with such regulations,
or comply with future regulations, without inordinate cost or interruption
of the Company's operations.
Authorized Preferred Stock. Preferred Stock may be issued from time
to time in one or more series. The Board of Directors is authorized to
determine the rights, privileges, and restrictions granted to and imposed
upon any series of Preferred Stock and to fix the number of shares of any
series of Preferred Stock and the designation of any such series. The
Board of Directors is thus authorized to permit the Company to issue one or
more series of Preferred Stock with voting and conversion rights which
could adversely affect the interests or voting rights of the holders of
Common Stock, without obtaining the approval of the holders of Common
Stock.
The Company has no present plans to issue any additional shares of
Preferred Stock.
<PAGE>9
THE COMPANY
The Company was first incorporated under the name "Galaxy Cheese
Company" under the laws of the Commonwealth of Pennsylvania in 1980 and was
merged into a wholly-owned subsidiary of the same name organized under the
laws of the State of Delaware in 1987. In February 1992, the Company
officially changed its name from Galaxy Cheese Company to Galaxy Foods
Company. The Company operates a comprehensive manufacturing facility at
its corporate offices located at 2441 Viscount Row, Orlando, Florida.
The Company's products are marketed to retailers in three principal
markets: retail, food service, and industrial. Customers ranging from
supermarket chains and health food stores, to industrial food manufacturers
which utilize the Company's products in the production of food items such
as frozen pizza, to restaurant chains, to food service distributors, and to
institutions such as hotels, hospitals and schools.
In June 1991, the Company suffered a complete loss, due to fire, of
its sole-existing manufacturing facility located in New Castle,
Pennsylvania. The fire was ruled an arson by the Pennsylvania Fire
Marshall of the Pennsylvania State Police, and the investigation of the
circumstances surrounding the fire is still open according to that agency.
After the fire, the Company used the proceeds of its property and business
interruption insurance to refurbish and equip a comprehensive manufacturing
facility in Orlando, Florida. The Company has relocated its entire
operations from New Castle, Pennsylvania, to its new facility in Orlando,
Florida. In June 1992, the Company resumed production and shipment of many
of its products directly from its Orlando plant to customers in each of the
Company's three principal markets,retail, food service and industrial.
Since that time, the Company has focused its efforts on increasing its
sales by introducing into the market new products and re-introducing
certain products that were originally introduced prior to the fire,
engaging nationwide distributors and brokers in the marketing of its
products, and concentrating its marketing efforts on its nutritionally
superior substitute cheese line of products.
<PAGE> 10
SELLING STOCKHOLDERS
Percentage of
Number of Number of Outstanding
Shares of Shares of Shares
Number Common Common of Common
of Stock Stock Stock to
Shares Offered to be Bene be Benefici
of Common for Sale ficially ally Owned
Names of Stock Pursuant Owned after
Selling Stockholders Beneficial to this Assuming Completion
ly Owned Prospectus Sale of All of Distribution
Owned Shares Assuming Sale
Offered of All Shares
Hereunder Offered
ADVANTAGE FUND
LIMITED (1) 2,766,623 (2) 3,500,000 0 *%
CORPORATE STUFF,
INC. (3) 16,666 50,000 0 *%
LEANN H. DAVIS (4) 7,500 7,500 0 *%
JOHN JACKSON (5) 38,000 50,000 18,000 *%
CHRISTOPHER MORINI (6) 52,100 50,000 32,100 *%
THOMAS PERNO (7) 20,000 50,000 0 0%
KULBIR SABHARWAL (8) 25,000 50,000 5,000 *%
DONALD WARRICK (9) 68,000 50,000 48,000 *%
TOTAL NUMBER OF SHARES
REGISTERED 3,807,500
*Less than 1%
FOOTNOTES
(1) Advantage Fund Limited, formerly named GFL Advantage Fund,
Ltd. ("Advantage Fund"), acquired 4,000 shares of the
Company's Series A Convertible Preferred Stock, $.01 par
value (the "Series A Preferred Stock"), in a transaction
exempt from registration under the 33 Act pursuant to
Regulation D, as promulgated under the 33 Act, and pursuant
to a certain Securities Purchase Agreement dated as of
April 16, 1996 at a purchase price of $1,000 per share. The
terms of the Series A Preferred Stock provide that the
holder thereof shall have the right to convert such shares
into shares of Common Stock at any time after June 30, 1996
at a conversion price (the "Conversion Price") equal to
71.5%, which percentage is subject to adjustment upon the
occurrence of certain events (the "Conversion Percentage"),
multiplied by the Average Market Price (as defined below) of
the Common Stock for the five consecutive trading days
ending one trading day prior to the date the notice of
conversion is received from the holder by the Company.
Under certain circumstances, the Company may require the
holder of the Series A Preferred Stock to convert some or
all of its shares of Series A Preferred Stock into Common
Stock. In no case, however, shall the holder be permitted
to hold, in the aggregate, such number of shares of Common
Stock which would exceed 4.9% of the aggregate outstanding
shares of Common Stock. The "Average Market Price" of the
Common Stock is the arithmetic average of the closing bid
prices for the Common Stock for each trading day as quoted
on the NASDAQ System or, if the NASDAQ System is not the
principal trading market for the Common Stock, on the
principal trading market for the Common Stock, or, if market
value cannot be so calculated, the average fair market value
during such period as reasonably determined in good faith by
the Company's Board of Directors (all as appropriately
adjusted for any stock dividend, stock split, or other
similar transaction during such period or between the end of
such period and the date of conversion). The number of
shares of Common Stock issuable upon conversion of the
Series A Preferred Stock is determined by dividing the
stated value of the Series A Preferred Stock, which is equal
to $1,000 (the "Stated Value"), by the Conversion Price then
in effect. See "Description of Capital Stock-Preferred
Stock-Series A Convertible Preferred Stock." Between July
1996 and July 30, 1997, 3,389 shares of Series A Preferred
Stock were converted into an aggregate of 5,500,000 shares
of Common Stock at an average conversion price of $0.73 per
share. As of September 4, 1997, 611 shares of the Company's
Series A Preferred Stock were issued and outstanding. The
Company has estimated that 1,500,000 shares of Common Stock
will be issuable to the holder of such shares of Series A
Preferred Stock upon conversion. Therefore, the Company is
registering 3,500,000 shares of Common Stock comprised of
2,000,000 shares currently held by Advantage Fund, together
with the estimated 1,500,000 shares issuable to Advantage
Fund upon conversion of the remainder of the Series A
Preferred Stock pursuant to the Registration Statement of
which this Prospectus is a part. This Prospectus also
relates to such indeterminate number of additional shares of
Common Stock as may be issued to the Selling Stockholders by
reason of stock splits, stock dividends and similar events
occurring on or after the date the Registration Statement
was filed with the SEC.
<PAGE> 11
(2) The number of shares of Common Stock beneficially owned by
Advantage Fund include those shares which Advantage Fund was
entitled to acquire upon conversion of shares of Series A
Preferred Stock as of September 4, 1997, estimated by
utilizing the Average Market Price for the Company's Common
Stock as reported on the National Association of Securities
Dealers, Inc. inter-dealer quotation system of $.875.
(3) Corporate Stuff, Inc. holds warrants to acquire 50,000
shares of the Company's Common Stock with an exercise price
of $0.78 per share. Such warrants were granted in
consideration of certain consulting services provided by
Corporate Stuff, Inc. to the Company pursuant to an
agreement dated April 23, 1997.
(4) LeAnn H. Davis holds warrants to acquire 7,500 shares of the
Company's Common Stock with an exercise price of $0.81 per
share. Such warrants were granted in consideration of the
performance of certain consulting services to be provided by
LeAnn H. Davis to the Company pursuant to an agreement dated
July 1, 1997.
(5) John Jackson holds options to acquire 50,000 shares of the
Company's Common Stock with an exercise price of $1.21 per
share. Such options were granted as performance incentives
to Mr. Jackson, an employee of the Company, and are subject
to an agreement dated May 16, 1996. The right to exercise
such options expires May 16, 2006; provided employment is
not terminated prior to that expiration date.
(6) Christopher Morini holds options to acquire 50,000 shares of
the Company's Common Stock with an exercise price of $1.21
per share. Such options were granted as performance
incentives to Mr. Morini, an employee of the Company, and
are subject to an agreement dated May 16, 1996. The right
to exercise such options expires May 16, 2006; provided
employment is not terminated prior to that expiration date.
(7) Thomas Perno holds options to acquire 50,000 shares of the
Company's Common Stock with an exercise price of $1.21 per
share. Such options were granted as performance incentives
to Mr. Perno, an employee of the Company, and are subject to
an agreement dated May 16, 1996. The right to exercise such
options expires May 16, 2006; provided employment is not
terminated prior to that expiration date.
(8) Kulbir Sabharwal holds options to acquire 50,000 shares of
the Company's Common Stock with an exercise price of $1.21
per share. Such options were granted as performance
incentives to Mr. Sabharwal, an employee of the Company, and
are subject to an agreement dated May 16, 1996. The right
to exercise such options expires May 16, 2006; provided
employment is not terminated prior to that expiration date.
(9) Donald Warrick holds options to acquire 50,000 shares of the
Company's Common Stock with an exercise price of $1.21 per
share. Such options were granted as performance incentives
to Mr. Warrick, an employee of the Company, and are subject
to an agreement dated May 16, 1996. The right to exercise
such options expires May 16, 2006; provided employment is
not terminated prior to that expiration date.
PLAN OF DISTRIBUTION
The 3,807,500 shares of Common Stock of the Company offered
hereby are being registered for sale pursuant to the Registration
Statement for the accounts of each of the Selling Stockholders,
and the Company will receive none of the proceeds from the sale
of any such shares. The shares being offered hereby will not be
sold through underwriters. However, the Selling Stockholders or
any broker or dealer utilized by them in connection with any
sales hereunder may be considered "underwriters" as defined in
the 33 Act. The Company is bearing all of the estimated
$17,500.00 in expenses associated with the Registration
Statement.
<PAGE> 12
Manner of Distribution
As of the date of this Prospectus, no Selling Stockholder
has informed the Company that the Selling Stockholders have any
agreement, arrangement, or understanding with any broker or
dealer concerning the distribution of shares of Common Stock
offered hereby. The distribution of the shares of Common Stock
by the Selling Stockholders may be effected from time to time in
one or more transactions (which may involve block transactions)
(i) in the over-the-counter market, (ii) in negotiated
transactions, (iii) pursuant to Rule 144, if available at the
time of sale, or (iv) a combination of such methods of sale, at
market prices prevailing at the time of sale or at negotiated
prices. As described below under "Restrictions on Use of
Prospectus," in the case of the Selling Stockholders who elect to
effect such transactions by selling shares to or through
broker-dealers, such broker-dealers may receive compensation in
the form of usual and customary brokerage commissions only.
The Company has agreed to indemnify the Selling Stockholders
and "controlling persons" or "underwriters" (as such terms are
defined in the 33 Act) participating in the distribution of
shares of the Common Stock hereunder from certain liabilities,
including those arising under the securities laws. The Company
has been informed that any such indemnification for liabilities
arising under the 33 Act is, in the opinion of the SEC, against
public policy and, therefore, unenforceable.
The Selling Stockholders may be considered affiliates of the
Company.
Sales by Broker-Dealers
The offering and sale of the Company's Common Stock may be
subject to SEC regulations applicable to securities priced under
five dollars that impose additional sales practice requirements
on broker-dealers who sell such securities to persons other than
established customers and accredited investors (generally,
institutions with assets in excess of $5,000,000 or individuals
with net worth in excess of $1,000,000 or annual income exceeding
$200,000 or $300,000 jointly with their spouse). For
transactions covered by this rule, the broker-dealer must make a
special suitability determination for the purchaser and receive
the purchaser's written agreement to the transaction prior to the
sale. Consequently, the regulations may affect the ability of
broker-dealers to sell the Company's Common Stock, and also may
affect the ability of purchasers in this offering to sell their
shares in the secondary market.
Restrictions on Use of Prospectus
This Prospectus may only be used in accordance with the
sales of Common Stock effected hereunder in compliance with the
following:
1. A Selling Stockholder may either sell directly to a
purchaser or place for sale any shares of Common Stock with
broker-dealers registered as such with the National Association
of Securities Dealers, Inc. ("NASD") who are in good standing
with such organization. In connection with sales made directly
to a purchaser by a Selling Stockholder, the Selling Stockholder
must deliver a prospectus to the prospective purchaser and must
comply with applicable laws of the states in which the purchaser
lives. For sales made by NASD members, the Selling Stockholders
shall deliver to the broker all necessary information to allow
the broker to comply with the prospectus delivery and other
requirements of applicable law in connection with any such sale.
2. No information or offering materials other than the
Prospectus, as it may be amended or supplemented, may be used by
a Selling Stockholder or broker-dealer in effecting sales
hereunder.
3. As the Company has agreed with the Selling Stockholders
to keep the Registration Statement effective during the
Registration Period, it may be necessary for the Company to
supplement and amend the Registration Statement from time to
time. Upon notice from the Company that any such supplement or
amendment is necessary, the Selling Stockholders have agreed to
cease any effort to sell any shares of Common Stock offered for
sale pursuant to the Registration Statement and will not so sell
any such shares of Common Stock until the Selling Stockholders
have received the supplemented or amended prospectus and
delivered a copy of the same to any prospective purchaser or
broker effecting any such sale, as required by law. The Company
has agreed with the Selling Stockholders to use its best efforts
to prepare any such supplement or amendment promptly.
<PAGE> 13
4. The Selling Stockholders will bear all commissions,
transfer taxes, fees and disbursements of its counsel, if any,
and all other expenses directly related to its sale of Common
Stock hereunder. The Company has agreed to pay the fees and
disbursements of counsel for the Selling Stockholders in
connection with the Registration Statements of which this
Prospectus forms a part.
5. No broker-dealer selling shares of Common Stock
hereunder shall be compensated at other than usual and customary
broker rates unless such compensation arrangements are disclosed
in a supplement to the Prospectus, to the extent required by
applicable law.
The Company has advised the Selling Stockholders of its
obligation to comply fully with applicable securities law
restrictions regarding the sale of Common Stock pursuant to this
Prospectus, including the above described requirements. In
addition, the Company has advised the Selling Stockholders of its
obligation to comply fully with the anti-manipulation provisions
of the 34 Act, including Rule 10b-5 and Regulation M promulgated
thereunder which, among other things, restrict participants in a
distribution of the Common Stock from making bids for or
purchases of the Common Stock, directly or indirectly. The
Selling Stockholders also have been advised to notify the Company
when its distribution is completed.
Other Offers
The Company may negotiate from time to time with creditors
or claimants to exchange shares of Common Stock in satisfaction
of indebtedness or obligations of the Company. Additionally, the
Company periodically negotiates with other parties for the
possible private placement or public offering of shares. Certain
of these negotiations may result in agreements with such parties.
The Company reserves the right, from time to time, to file
additional registration statements, which would provide for sale
or distribution in a manner similar to that described herein, for
the sale of shares of Common Stock or other securities on the
open market or otherwise.
USE OF PROCEEDS
The sale of shares of Common Stock of the Company pursuant
to this Prospectus will be solely for the account of the Selling
Stockholders, and the Company will receive none of the proceeds
from the sales of such shares, or any direct benefit, other than
its having complied with various agreements as described
elsewhere in this Prospectus.
DETERMINATION OF OFFERING PRICE
The price of the shares of Common Stock offered for sale by
the Selling Stockholders pursuant to the terms of the secondary
offering described in this Prospectus will be determined in arm's
length negotiations between each Selling Stockholder and certain
parties interested in purchasing the Common Stock or interested
in acting as brokers for the sale of the Common Stock. Factors
which are relevant to the determination of the offering price may
include but are not limited to the market price for the shares,
consideration of the amount of Common Stock offered for sale
relative to the total shares of Common Stock outstanding, the
trading history of the Company's outstanding securities, the
financial prospects of the Company, and the trading price of
other companies similar to the Company in terms of size,
operating characteristics, industry and other similar factors.
<PAGE> 14
DESCRIPTION OF CAPITAL STOCK
General
The Company is authorized to issue an aggregate of
85,000,000 shares of Common Stock, $.01 par value, and 1,000,000
shares of Series A Convertible Preferred Stock, $.01 par value.
As of September 4, 1997, 60,702,202 shares of Common Stock were
issued and outstanding and held of record by approximately 659
shareholders. Of the approximately 659 shareholders of record at
September 4, 1997, one was a nominee which held approximately
31,727,941 issued and outstanding shares for its customers in
so-called "street name." As of September 4, 1997, 611 shares of
Series A Convertible Preferred Stock were issued and outstanding.
No other shares of Preferred Stock have been authorized or
issued.
Common Stock
The holders of Common Stock are entitled to one vote for
each share held of record on all matters to be voted by
stockholders. All voting is on a noncumulative basis. The
holders of Common Stock are entitled to receive such dividends,
if any, as may be declared from time to time by the Board of
Directors in its discretion from funds legally available after
provision has been made for each class of stock, if any, having
preference over Common Stock as to dividends. Upon liquidation
or dissolution of the Company, the holders of Common Stock are
entitled to receive pro rata all assets remaining available for
distribution to them, after provision has been made for such
class of stock, if any, having preference over Common Stock to
liquidation. The Common Stock has no preemptive or other
subscription rights and is not subject to any future calls or
assessments. There are no conversion rights, redemption or
sinking fund provisions applicable to shares of Common Stock.
All of the outstanding shares of Common Stock are, including
shares of Common Stock issuable upon exercise of warrants (when
purchased in accordance with the terms thereof), will be, when
issued and delivered, fully paid and nonassessable.
Preferred Stock
Preferred Stock may be issued from time to time in one or
more series. The Board of Directors is authorized to determine
the rights, privileges, and restrictions granted to and imposed
upon any series of Preferred Stock and to fix the number of
shares of any series of Preferred Stock and the designation of
any such series. The Board of Directors is thus authorized to
permit the Company to issue one or more series of Preferred Stock
with voting and conversion rights which could adversely affect
the interests or voting rights of the holders of Common Stock,
without obtaining the approval of the holders of Common Stock.
The issuance of such stock could also have the effect of delaying
or preventing a change in control of the Company.
Series A Convertible Preferred Stock.
Originally, the Company authorized and issued 4,000 shares
of Series A Preferred Stock. The terms of the Series A Preferred
Stock provide that the holders thereof shall have the right to
convert such shares into shares of Common Stock at any time after
June 30, 1996 at a Conversion Price equal to the Conversion
Percentage multiplied by the Average Market Price of the Common
Stock for the five consecutive trading days ending one trading
day prior to the date the notice of conversion is received from
the holder by the Company. Under certain circumstances, the
Company may require the holder of the Series A Preferred Stock to
convert some or all of its shares of Series A Preferred Stock
into Common Stock. In no case, however, shall the holder be
permitted to hold, in the aggregate, such number of shares of
Common Stock which would exceed 4.9% of the aggregate outstanding
shares of Common Stock. The number of shares of Common Stock
issuable upon conversion of the Series A Preferred Stock is
determined by dividing the Stated Value of the Series A Preferred
Stock, which is equal to $1,000, by the Conversion Price then in
effect.
In addition, pursuant to the terms of the Series A Preferred
Stock, in the event that shares of Common Stock into which the
Series A Preferred Stock is convertible cannot be sold pursuant
to an effective registration statement, or if the Common Stock is
not listed on the NASDAQ System, the New York Stock Exchange
("NYSE") or the American Stock Exchange ("AMEX"), the Conversion
Percentage of the Series A Preferred Stock is required to be
reduced by such number of percentage points equal to three times
the sum of (i) the number of months (prorated for partial months)
by which the effectiveness of the registration statement is
delayed, (ii) the number of months that sales cannot be made
after the effective date of the registration statement, and (iii)
the number of months that the Common Stock is not listed or
included for quotation on the NASDAQ System, NYSE or AMEX. The
Company originally registered 3,500,000 shares of Common Stock on
behalf of Advantage Fund under a Registration Statement on Form
S-3 which was declared effective as of May 7, 1996. 3,500,000
additional shares of Common Stock into which the Series A
Preferred Stock has been converted or is convertible are being
registered pursuant to the Registration Statement of which this
Prospectus is a part.
<PAGE> 15
Furthermore, if a holder of Series A Preferred Stock
converts Series A Preferred Stock into Common Stock (the
"Conversion Stock"), and a subsequent event as described above
requires adjustment to the Conversion Percentage prior to the
sale by such holder of such Conversion Stock, the Company is
required to pay to such holder, within five days after receipt of
a notice of sale therefrom, an amount equal to the Average Market
Price of the Conversion Stock for the five trading days ending
one trading day prior to the date of conversion multiplied by
three-hundredths (0.03) times the number of months (prorated for
partial months) for which adjustment is required, as described
above. Such amount may be paid by the Company either in cash or,
at the Company's option, in Common Stock based on the Average
Market Price of the Conversion Stock for the period of five
consecutive trading days ending on the date of the sale of such
Conversion Stock, provided, that cash must be paid (i) in the
event that the Common Stock is not traded on NASDAQ System, NYSE,
or AMEX or (ii) with respect to such shares which would cause the
holder of such shares to own Common Stock in excess of 4.9% of
the outstanding shares of Common Stock of the Company.
The holder of the Series A Preferred Stock is not entitled
to receive any dividends with respect to the Series A Preferred
Stock. The holders of the Series A Preferred Stock are entitled
to a liquidation preference, prior to the payment of any amounts
payable to the holders of the Common Stock, equal to the Stated
Value per share of Series A Preferred Stock. Although the
Company may authorize and issue additional or other preferred
stock which is of equal or junior rank to the Series A Preferred
Stock with respect to the preferences as to distributions and
payments upon liquidation, dissolution or winding up of the
Company, the Company may not authorize or issue capital stock
which is senior in rank to the Series A Preferred Stock with
respect to such rights and preferences. The Company has the
right to redeem all or any part of the Series A Preferred Stock
at any time subsequent to December 18, 1996 at a redemption price
of $1,398.60 per share.
Between July 1996 and September 4, 1997, 3,389 shares of
Series A Preferred Stock were converted into an aggregate of
5,500,000 shares of Common Stock at an average conversion price
of $0.73 per share. As of September 4, 1997, 611 shares of the
Company's Series A Preferred Stock were issued and outstanding.
The Company has no present plans to issue any additional
shares of Preferred Stock.
LEGAL MATTERS
Baker & Hostetler LLP, Orlando, Florida, has rendered an
opinion that the shares of Common Stock offered hereby are
legally issued, fully paid and nonassessable. None of the
attorneys in such firm holds securities of the Company.
EXPERTS
The financial statements incorporated by reference in this
Prospectus have been audited by BDO Seidman, LLP, independent
certified public accountants, to the extent and for the periods
set forth in their report incorporated herein by reference, and
are included in reliance upon such report given upon the
authority of said firm as experts in auditing and accounting.
<PAGE> 16
FORWARD-LOOKING STATEMENTS
This Prospectus, including the documents incorporated herein
by reference, contains statements that constitute forward-looking
statements. Those statements appear in a number of places in
this Prospectus and the documents incorporated herein by
reference and include statements regarding the intent, belief or
current expectations of the Company, its directors or its
officers with respect to (i) the declaration or payments of
dividends; (ii) the Company's financing plans; (iii) the
Company's policies regarding investments, financings and other
matters; and (iv) trends affecting the Company's financial
condition or results of operations. Forward-looking statements
may be identified by the use of forward-looking terminology such
as "may", "will", "expect", "believe", "estimate", "anticipate",
"continue", or similar terms, variations of these terms or the
negative of those terms.
Prospective investors are cautioned that any such
forward-looking statement is not a guarantee of future
performance and involves risks and uncertainties, and that actual
results may differ materially from those in the forward-looking
statements as a result of various factors. The accompanying
information contained in this Prospectus and the documents
incorporated herein by reference, including without limitation
the information in the documents incorporated herein by reference
under the heading "Management's Discussion and Analysis of
Financial Condition and Results of Operations," identifies
important factors that could cause such differences. With
respect to any such forward-looking statement that includes a
statement of its underlying assumptions or bases, the Company
cautions that, while it believes such assumptions or bases to be
reasonable and has formed them in good faith, assumed facts or
bases almost always vary from actual results, and the differences
between assumed facts or bases and actual results can be material
depending on the circumstances. When, in any forward-looking
statement, the Company, or its management, expresses an
expectation or belief as to future results, that expectation or
belief is expressed in good faith and is believed to have a
reasonable basis, but there can be no assurance that the stated
expectation or belief will result or be achieved or accomplished.
<PAGE> 17
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BLANK AND UNNUMBERED]
<PAGE> 18
No dealer, salesman, or other
person has been authorized to give
any information or to make any
representations other than those
contained in this Prospectus, and,
if given or made, such information
or representations must not be
relied upon as having been so GALAXY
authorized. This Prospectus does FOODS COMPANY
not constitute an offer to sell or
a solicitation of an offer to buy
such securities in any jurisdiction
to any person to whom it is 3,807,500 Shares
unlawful to make such an offer or
solicitation in such jurisdiction. Common Stock
Neither the deliver of this Prospec
tus nor any sale hereunder shall,
under any circumstances, create any
implication that there has been no
change in the affairs of the
Company since the date hereof or
that the information contained
herein is correct as of any time PROSPECTUS
subsequent to its date.
TABLE OF CONTENTS
Page
Available Information 2
Incorporation of Certain
Information by Reference 2
Risk Factors 3
The Company 8
Selling Stockholders 8
Plan of Distribution 9
Use of Proceeds 10
Determination of Offering Price 10
Description of Capital Stock 11
Legal Matters 12
Experts 13
Until [_________, 1997] (90 days [______________, 1997]
after the date of this Prospectus),
all dealers effecting transactions
in the registered securities,
weather or not participating in
this distribution, may be required
to deliver a Prospectus. This is
in addition to the obligation of
dealers to deliver a Prospectus
when acting as underwriters and
with respect to their unsold allot
ments or subscriptions.
<PAGE> 19
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the various expenses payable
by the Registrant in connection with the sale and distribution of
250,000 shares of Common Stock being registered, other than
underwriting discounts and commissions. The filing fee for
3,557,500 shares of Common Stock ($1,110.37), based upon a
proposed maximum aggregate offering price of $3,664,225.00, was
paid in the original filing of the Registration Statement on Form
S-3 on August 1, 1997. All of the amounts shown are estimated
except the SEC registration fee and the NASD filing fee.
SEC Registration Fee $ 1,181.39
NASD Filing Fee 889.86
Blue Sky Fees and Expenses *5,000.00
Printing Expenses *1,000.00
Legal Fees and Expenses *5,000.00
Accounting Fees Expenses *3,000.00
Transfer Agent Fees *1,000.00
Miscellaneous 428.75
Total $ 17,500.00
*Estimated
Item 15. Indemnification of Directors and Officers.
The Certificate of Incorporation of Galaxy Foods Company
(the "Registrant") and the statutes of the State of Delaware
provide for broad indemnification of the officers and directors
of the Registrant for liabilities arising from actions taken by
them on behalf of the Registrant. Insofar as indemnification for
liabilities arising under the Securities Act of 1933 (the
"33 Act") may be permitted to directors, officers, and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission (the "SEC")
such indemnification is against public policy as expressed in the
33 Act and is, therefore, unenforceable.
Item 16. Exhibits.
The following Exhibits are filed as part of this
Registration Statement.
Exhibit No. Exhibit
Description
*5 Opinion of Baker & Hostetler LLP, dated July 30, 1997,
regarding legality of shares being offered (Filed as
Exhibit 5 to the Registrant's Registration Statement on Form
S-3, SEC No. 333-32625.)
*23.1 Consent of Baker & Hostetler LLP, dated July
30, 1997 (Contained in its opinion filed as Exhibit to
the Registrant's Registration Statement on Form S-3,
SEC No. 333-32625.)
*23.2 Consent of BDO Seidman, LLP, dated July 30, 1997
(Filed as Exhibit 23.2 to the Registrant's Registration Statement
on Form S-3, SEC No. 333-32625.)
<PAGE> 20
23.3 Consent of BDO Seidman, LLP, dated September 12, 1997
(Filed herewith.)
27 Financial Data Schedule (Filed herewith.)
*Previously Filed
Item 17. Undertakings.
The Registrant undertakes to:
(a) File, during any period in which it offers or sells
securities, a post-effective amendment to this registration
statement to:
(i) Include any prospectus required by section
10(a)(3) of the Securities Act;
(ii) Reflect in the prospectus any facts or events
which, individually or together, represent a fundamental change
in the information in the registration statement; and
notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered (if the total dollar value of securities offered would
not exceed that which was registered) and any deviation from the
low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in the
volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in this Registration Statement;
(iii) Include any additional or changed material
information on the plan of distribution;
Provided, however, that paragraphs (a)(i) and (a)(ii) do not
apply if the Registration Statement is on Form S-3 or Form S-8,
and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d)
of the 34 Act that are incorporated by referenced in the
Registration Statement.
(b) For the purpose of determining any liability under the
33 Act, as amended, each such post-effective amendment may be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
Insofar as indemnification for liabilities arising under the
33 Act may be permitted to directors, officers, and controlling
persons of the Registrant pursuant to the foregoing provisions,
or otherwise, the Registrant has been advised that in the opinion
of the SEC such indemnification is against public policy as
expressed in the 33 Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or
paid by a director, officer, or controlling person of the
Registrant in the successful defense of any such action, suit, or
proceeding) is asserted by such director, officer, or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the 33 Act and will be governed by the final adjudication of such
issue.
The Registrant undertakes that (a) for purposes of
determining any liability under the 33 Act, the information
omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained
in a form of prospectus filed by the Registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the 33 Act shall be deemed
to be part of this registration statement as of the time it was
declared effective, and (b) for the purpose of determining any
liability under the 33 Act, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
<PAGE> 21
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements of filing on
Form S-3 and authorized this Amendment No. 1 to the Registration
Statement to be signed on its behalf by the undersigned, in the
City of Orlando, State of Florida this 12th day of September,
1997.
GALAXY FOODS COMPANY
By:/s/Angelo S. Morini
ANGELO S. MORINI, President
Pursuant to the requirements of the Securities Act of 1933,
this Amendment No. 1 to the Registration Statement has been
signed below by the following persons in the capacities and on
the dates indicated.
Signature Title Date
/s/Angelo S. Morini Chairman of the September 12, 1997
ANGELO S. MORINI Board of Directors,
President, Chief
Executive Officer
(Principal Executive
Officer) and Director
/s/Cynthia L. Hunter Chief Financial September 12, 1997
CYNTHIA L. HUNTER Officer (Chief
Financial Officer
and Principal
Accounting Officer)
/s/Marshall K. Luther Director September 12, 1997
MARSHALL K. LUTHER
/s/Earl G. Tyree Director September 12, 1997
EARL G. TYREE
/s/Douglas A. Walsh Director September 12, 1997
DOUGLAS A. WALSH
<PAGE> 22
EXHIBITS
<PAGE> 23
EXHIBITS INDEX
Exhibit No. Exhibit Description Page No.
*5 Opinion of Baker & Hostetler LLP, dated July 30, 1997,
regarding legality of shares being offered (Filed as
Exhibit 5 to the Registrant's Registration Statement
on Form S-3, SEC No. 333-32625.)
*23.1 Consent of Baker & Hostetler LLP, dated July
30, 1997 (Contained in its opinion filed as Exhibit to
the Registrant's Registration Statement on Form S-3,
SEC No. 333-32625.)
*23.2 Consent of BDO Seidman, LLP, , dated July 30,
1997 (Filed as Exhibit 23.2 to the Registrant's
Registration Statement on Form S-3, SEC No. 333-32625.)
23.3 Consent of BDO Seidman, LLP, dated September 12, 1997
(Filed herewith.)
*27 Financial Data Schedule (Filed as Exhibit 27 to the
Registrant's Registration Statement on Form S-3, SEC No.
333-32625.)
___________
*Previously Filed
<PAGE> 24
EXHIBIT 23.3
Consent of BDO Seidman, LLP, dated
September 12, 1997
<PAGE> 25
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
Galaxy Foods Company
Orlando, Florida
We hereby consent to the incorporation by reference in the
Prospectus constituting a part of this Registration Statement of
our report dated May 21, 1997, relating to the financial
statements of Galaxy Foods Company appearing in the Company's
Annual Report on Form 10-KSB for the year ended March 31, 1997.
We also consent to the reference to use under the caption
"Experts" in the Prospectus.
/s/BDO Seidman, LLP
BDO Seidman, LLP
Orlando, Florida
September 12, 1997
