SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
Form S-8
Registration Statement under The Securities Act of 1933
GALAXY FOODS COMPANY
(Exact name of registrant as specified in its charter)
Delaware 25-1391475
(State or other
jurisdiction (IRS Employer
of incorporation) Identification No.)
2441 Viscount Row, Orlando, Florida 32809
(Address of Principal Executive Offices including Zip Code)
ANGELO S. MORINI, PRESIDENT
Galaxy Foods Company
2441 Viscount Row, Orlando, Florida 32809
(Name and address of agent for service)
(407) 855-5500
(Telephone Number, including area code, of agent for service)
COPY TO:
JEFFREY E. DECKER, ESQUIRE
Baker & Hostetler LLP
200 South Orange Avenue, Suite 2300
Orlando, Florida 32801
Telephone: (407) 649-4000
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Each Maximum Maximum Amount of
Class of Amount to Offering Aggregate Registrati
Securities be Price Offering on Fee
to be Registere Per Price
Registered d (1) Share(2)
Common Stock, 71,428 $3.7815 $270,105 $75.09
$.01 par value
(1)Pursuant to Rule 416(a), also covers additional securities
that may be offered as a result of stock splits, stock
dividends or similar transactions.
(2)Estimated solely for the purpose of calculating the
registration fee, in accordance with Rule 457(h), on the
basis of the price of securities of that same class, as
determined in accordance with Rule 457(c), using the
average of the high and low prices for the Common Stock as
reported on the Amex Stock Exchange on February 28, 2000,
which was $3.7815.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. PLAN INFORMATION
Not filed as part of this Registration Statement pursuant to
the Note to Part I of Form S-8.
Item 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL
INFORMATION
Not filed as part of this Registration Statement pursuant to
the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, which previously have been filed by
the Company with the Securities and Exchange Commission (the
"Commission"), are incorporated herein by reference and made a
part hereof:
(i) The Company's Annual Report on Form 10-K for the fiscal
year ended March 31, 1999;
(ii) The Company's Quarterly Reports on Form 10-Q for the
fiscal quarters ended June 30, 1999, September 30, 1999, and
December 31, 1999;
(iii) All other reports filed pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since the end of the fiscal year covered by the
Annual Report referred to in (i) above; and
(iv) The description of the Common Stock contained in the
Registration Statement on Form 8-A dated September 29, 1999,
including any amendment or report filed to update such
description.
All reports and other documents filed by the Company
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the exchange
act subsequent to the date of this Registration Statement and
prior to the filing of a post-effective amendment hereto which
indicates that all securities offered hereunder have been sold or
which de-registers all securities and remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part
hereof from the date of filing of such reports and documents.
Any statement contained herein or in any document
incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained
herein or in any other subsequently filed document which also is
or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statements so modified or
superseded shall not be deemed to constitute a part of this
Registration Statement except as so modified or superseded.
Item 4. DESCRIPTION OF SECURITIES
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
<PAGE> 3
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law ("DGCL")
makes provision for the indemnification of officers and directors
of corporations in terms sufficiently broad to indemnify the
officers and directors of the Company under certain circumstances
from liabilities (including reimbursement of expenses incurred)
arising under the Securities Act of 1933, as amended (the "Act").
Section 102(b)(7) of the DGCL permits a corporation to provide in
its Certificate of Incorporation that a director of the
corporation shall not be personally liable to the corporation or
its stockholders from monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of
the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of
law, (iii) in respect of certain unlawful dividend payments or
stock redemptions or repurchases, or (iv) for any transaction
from which the director derived an improper personal benefit.
As permitted by the DGCL, the Company's Certificate of
Incorporation (the "Charter") provides that the personal
liability of each member of the Company's Board of Directors to
the Company or its stockholders for monetary damages for breach
of fiduciary duty as a director is eliminated. The effect of
this provision in the Charter is to eliminate the rights of the
Company and its stockholders (through stockholders' derivative
suites on behalf of the Company) to recover monetary damages
against a director for breach of fiduciary duty as a director
thereof (including breaches resulting from negligent or grossly
negligent behavior) except in the situations described in clauses
(i)-(iv), inclusive, above. These provisions will not alter the
liability of directors under federal securities laws.
The Company's Bylaws (the "Bylaws") provide that the Company
shall indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in
the right of the Company) by reason of the fact that he is or was
a director, officer, employee or agent of the Company, or is or
was serving at the request of the Company as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal
action or proceedings, had no reasonable cause to believe his
conduct was unlawful.
The Bylaws also provide that the Company shall indemnify any
person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in
the right of the Company to procure a judgment in its favor by
reason of the fact that he is or was a director, officer,
employee or agent of the Company, or is or was serving at the
request of the Company as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company and except that no
indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be
liable unless and only to the extent that the Court of Chancery
of the State of Delaware or the court in which such action or
suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of
Chancery of the State of Delaware or such other court shall deem
proper.
To the extent that any person described in the preceding two
paragraphs is successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in such paragraphs, or
in defense of any claim, issue or matter therein, the Company
shall indemnify him against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
The Company may pay expenses of a person incurred in defending a
civil or criminal action, suit or proceeding in advance of the
final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of a person to repay such
amount if it shall ultimately be determined that he is not
entitled to indemnification by the Company.
<PAGE> 4
The Bylaws further provide that the indemnification and
advancement of expenses provided for in the Bylaws shall not be
deemed exclusive of any other rights to the indemnified party
under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such
office, and that the Board of Directors may authorize the Company
to purchase and maintain insurance on behalf of any such person
against any liability asserted against him and incurred by him in
any such capacity, or arising out of his status as such, whether
or not the Company would have the power to indemnify him against
such liability. The Company provides indemnity insurance
pursuant to which officers and directors are indemnified or
insured against liability or loss under certain circumstances,
which may include liability or related loss under the Act and the
Exchange Act.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
Item 8. EXHIBITS
Unless otherwise indicated below as being incorporated by
reference to another filing of the Company with the Commission,
each of the following exhibits is filed herewith:
Exhibit Number Description of Document
* 4.3 Galaxy Foods Company 1996 Stock Plan (filed
as Schedule 10.30 to the Registrant's Annual Report on
Form 10-K for the fiscal year ended March 31,
1997 and incorporated herein by reference).
5.1 Legal Opinion of Baker & Hostetler LLP,
counsel to the Registrant.
23.1 Consent of BDO Seidman LLP, independent
auditors of the Registrant.
23.2 Consent of Baker & Hostetler LLP, counsel to
the Registrant (contained in Exhibit 5.1).
24.1 Power of Attorney (contained on signature
page hereto).
* Previously filed.
Item 9. UNDERTAKINGS.
(1) The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information in
the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume 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 file with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in 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 the effective registration
statement; and
<PAGE> 5
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the registration statement or any material
change to such information in the registration
statement.
Provided, however, that paragraphs (i) and (ii) of this
paragraph do not apply if 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 Exchange Act
that are incorporated by reference in the registration
statement.
(b) That, for the purpose of determining any liability
under the Act, each such post-effective amendment 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.
(c) To 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.
(2) That for purposes of determining any liability under
the Act, each filing of the Registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement 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.
(3) Insofar as indemnification for liabilities arising
under the 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 Commission such indemnification is against
public policy as expressed in the 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 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 act and will be governed by the final
adjudication of such issue.
<PAGE> 6
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 for filing on Form
S-8 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
the City of Orlando, State of Florida, on the 29th day of
February, 2000.
GALAXY FOODS COMPANY
By:/S/Angelo S. Morini
Angelo S. Morini,
Chairman of the Board,
President and Chief
Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below on this
Registration Statement hereby constitutes and appoints Angelo S.
Morini and Keith A. Ewing and each of them, with full power to
act without the other, his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution,
severally, for him and in his name, place and stead, in any and
all capacities, to sign any and all amendments (including
post-effective amendments and amendments thereto) to this
registration statement, and to file the same, with all exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of
them, or their or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following
persons in the capacities and on the date indicated.
SIGNATURES
Signatures Title
Date
/s/Angelo S. Morini Chairman of the Board of Directors, February 29, 2000
Angelo S. Morini President, Chief Executive Officer
(Principal Executive Officer)
/s/Keith A. Ewing Chief Financial Officer (Principal February 29, 2000
Keith A. Ewing Financial Officer and Principal Accounting Officer)
/s/Joseph Juliano Director February 29, 2000
Joseph Juliano
/s/Marshall Luther Director February 29, 2000
Marshall K. Luther
/s/Douglas Walsh Director February 29, 2000
Douglas A. Walsh
<PAGE> 7
INDEX TO EXHIBITS
Exhibit
Number Description of Documents Page
* 4.3 Galaxy Foods Company 1996 Stock Plan (filed as
Schedule 10.30 to the Registrant's Annual Report
on Form 10-K for the fiscal year ended March 31, 1997
and incorporated herein by reference).
5.1 Legal Opinion of Baker & Hostetler LLP, counsel
to the Registrant.
23.1 Consent of BDO Seidman LLP, independent auditors
of the Registrant.
23.2 Consent of Baker & Hostetler LLP, counsel to the
Registrant (contained in Exhibit 5.1).
24.1 Power of Attorney (contained on signature
page hereto).
* Previously filed.
<PAGE> 8
EXHIBIT 5.1
February 29, 2000
Galaxy Foods Company
2441 Viscount Row
Orlando, Florida 32809
Ladies and Gentlemen:
We have acted as counsel for Galaxy Foods Company, a
Delaware corporation (the "Company"), in connection with the
registration of shares of common stock of the Company, par value
$.01 per share (the "Shares"), pursuant to the Registration
Statement on Form S-8 filed by the Company with the Securities
and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Registration Statement"). The
Registration Statement is being filed to register 71,428 Shares
for offer and sale under and pursuant to the Company's 1996 Stock
Plan (the "Plan").
In connection with the registration of 71,428 Shares for
offer and sale under the pursuant to the Plan, we have examined
the Company's Certificate of Incorporation, as amended, the
Company's Bylaws, and the records, as exhibited to us, of the
proceedings taken by the Company in connection with the
registration of the Shares.
It is our opinion that the Shares, when issued and sold in
the manner described in the Registration Statement and the
related Prospectus, will be legally and validly issued, fully
paid and nonassessable.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and further consent to all
references to us in the Registration Statement and any amendments
thereto.
Very truly yours,
BAKER & HOSTETLER LLP
/s/ Baker & Hostetler LLP
<PAGE> 9
EXHIBIT 23.1
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the
Prospectus constituting a part of this Registration Statement
relating to the 1996 Stock Plan of our report dated June 8, 1999
relating to the financial statements of Galaxy Foods Company
appearing in the Company's Annual Report on Form 10-K for the
year ended March 31, 1999.
/s/ BDO Seidman, LLP
BDO Seidman, LLP
February 28, 2000
