REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of May
21, 2003, by and between Galaxy Nutritional Foods, Inc., a Delaware
corporation, with headquarters located at 0000 Xxxxxxxx Xxxx, Xxxxxxx,
Xxxxxxx 00000 (the "Company"), and Fromageries Bel, with headquarters
located at 00, Xx Xxxxxxxxxxx 00000, Xxxxx, Xxxxxx (the "Buyer").
PRELIMINARY STATEMENTS
A. In connection with the Securities Purchase Agreement by and
between the parties of even date herewith (the "Securities Purchase
Agreement"), the Company has agreed, upon the terms and subject to the
conditions of the Securities Purchase Agreement, to issue and sell to the
Buyer shares of the Company's common stock, par value $0.01 per share (the
"Common Stock") for an aggregate purchase price of $2 million; and
B. To induce the Buyer to execute and deliver, and as a condition to
the effectiveness of, the Securities Purchase Agreement, the Company has
agreed to provide certain registration rights under the Securities Act of
1933, as amended, and the rules and regulations thereunder, or any similar
successor statute (collectively, the "1933 Act"), and applicable state
securities laws.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and
the Buyer hereby agree as follows:
1. DEFINITIONS.
a. As used in this Agreement, the following terms shall have the
following meanings:
(i) "Investor" means the Buyer and any transferee or
assignee thereof who agrees to become bound by the provisions of this
Agreement in accordance with Section 9 hereof.
(ii) "register," "registered," and "registration" refer to a
registration effected by preparing and filing a Registration Statement or
Statements in compliance with the 1933 Act and pursuant to Rule 415 under
the 1933 Act or any successor rule providing for offering securities on a
continuous basis ("Rule 415"), and the declaration or ordering of
effectiveness of such Registration Statement by the United States
Securities and Exchange Commission (the "SEC").
(iii) "Registrable Securities" means the Securities (as
defined in the Securities Purchase Agreement).
(iv) "Registration Period" means the period commencing on
the date on which the Registration Statement filed pursuant to this
Agreement is declared effective by the SEC and expiring on the date that
..a. the Investor may sell all of the Registrable Securities without
restriction pursuant to Rule 144(k) promulgated under the 1933 Act, or (B)
the Investor has sold all of the Registrable Securities.
(v) "Registration Statement" means a registration statement
of the Company under the 0000 Xxx.
b. Capitalized terms used herein and not otherwise defined
herein shall have the respective meanings set forth in the Securities
Purchase Agreement.
2. REGISTRATION RIGHTS.
a. Mandatory Registration. The Company shall prepare and file
with the SEC a Registration Statement on Form S-3 (or, if such form is
unavailable for such a registration, on such other form as is available for
such a registration) covering the resale of the Registrable Securities.
The Registration Statement (and each amendment or supplement thereto) shall
be provided to the Buyer and its counsel no later than five business days
prior to its filing or other submission, and shall be subject to approval
by Buyer and its counsel within such five business day period, such
approval not to be unreasonably withheld. The Company will use its
reasonable efforts to cause such Registration Statement to become effective
as promptly as practicable but not later than 180 days after Closing, as
defined in the Securities Purchase Agreement (the "Effective Date
Deadline"). The Company shall notify the Investor in writing by facsimile
transmission or email notice that such Registration Statement has been
declared effective by the SEC promptly following the Company becoming aware
of such declaration by the SEC.
b. Registration Default. If the Registration Statement
covering the Registrable Securities required to be filed by the Company
pursuant to Section 2.a. is not declared effective by the SEC by the
Effective Date Deadline, then the Company shall make the payments to the
Investor as provided in the next sentence as liquidated damages and not as
a penalty. The amount to be paid by the Company to the Investor shall be
determined as of each Computation Date (as defined below), and such amount
shall be equal to 2.5% (the "Liquidated Damage Rate") of the product of (i)
the per share purchase price of the Securities under the Securities
Purchase Agreement and (ii) the number of shares of Registrable Securities
then held by the Investor, for the period from the Effective Date Deadline
to the first Computation Date, and for each 30-day period of any subsequent
Computation Dates thereafter, in each case calculated on a pro rata basis
to the date on which the Registration Statement is declared effective by
the SEC (the "Periodic Amount"). The full Periodic Amount shall be paid by
the Company to the Investor by wire transfer of immediately available funds
within three business days after each Computation Date or three business
days after the date on which the Registration Statement is declared
effective by the SEC, whichever occurs earlier.
As used in this Section 2.b., "Computation Date" means the date which
is 30 days after the Effective Date Deadline and, if the Registration
Statement to be filed by the Company pursuant to Section 2(a) has not
theretofore been declared effective by the SEC, each date which is 30 days
after the previous Computation Date until such Registration Statement is so
declared effective.
c. Piggy-Back Registrations. If at any time before a
Registration Statement that is required to be filed under this Agreement is
declared effective, the Company shall file with the SEC a Registration
Statement relating to an offering for its own account or the account of
others under the 1933 Act of any of its equity securities (other than on
Form S-4 or Form S-8 or their then equivalents relating to equity
securities to be issued solely in connection with any acquisition of any
entity or business or equity securities issuable in connection with stock
option or other employee benefit plans), the Company shall each such time
send to the Investor who is entitled to registration rights under this
Section 2 written notice at least twenty (20) days prior to the
anticipating filing date of such Registration Statement of the intended
filing of such Registration Statement and, if within twenty (20) days after
receipt of such notice, the Investor shall so request in writing, the
Company shall include in such Registration Statement all or any part of the
Registrable Securities the Investor requests to be registered, except that
if, in connection with any underwritten public offering for the account of
the Company the managing underwriter(s) thereof shall impose a limitation
on the number of shares of Common Stock which may be included in the
Registration Statement because, in such underwriter(s)' judgment, marketing
or other factors dictate such limitation is necessary to facilitate public
distribution, then the Company shall be obligated to include in such
Registration Statement only a limited portion of the Registrable Securities
with respect to which the Investor has requested inclusion hereunder, such
portion to be determined as hereinafter provided; provided that no portion
of the equity securities which the Company is offering for its own account
shall be excluded; provided, further that the Company shall be entitled to
exclude Registrable Securities to the extent necessary to avoid breaching
obligations existing prior to the date hereof to other stockholders of the
Company. Subject to the foregoing, the Company shall not exclude any
Registrable Securities unless the Company has first excluded all
outstanding securities, the holders of which are not entitled to inclusion
of such securities in such Registration Statement or are not entitled to
pro rata inclusion with the Registrable Securities, and, after giving
effect to the immediately preceding clause, any exclusion of Registrable
Securities shall be made pro rata with holders of other securities having
the right to include such securities in the Registration Statement other
than holders of securities entitled to inclusion of their securities in
such Registration Statement by reason of demand registration rights. The
obligations of the Company under this Section 2 may be waived by the
Investor. If an offering in connection with which the Investor is entitled
to registration under this Section 2. is an underwritten offering, then if
the Investor's Registrable Securities are included in such Registration
Statement the Investor shall, unless otherwise agreed by the Company, offer
and sell such Registrable Securities in an underwritten offering using the
same underwriter or underwriters and, subject to the provisions of this
Agreement, on the same terms and conditions as other shares of Common Stock
included in such underwritten offering. If as a result of the proration
provisions of this Section 2.c., the Investor is not entitled to include
all such Registrable Securities in such registration, such Investor may
elect to withdraw its request to include any Registrable Securities in such
registration.
3. OBLIGATIONS OF THE COMPANY.
In connection with the registration of the Registrable Securities, the
Company shall have the following obligations:
a. A Registration Statement filed pursuant to this Agreement (including
any amendments or supplements thereto and prospectuses contained therein)
shall not contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein, or necessary to make the
statements therein, in light of the circumstances in which they were made,
not misleading.
b. The Company shall prepare and file with the SEC such amendments
(including post-effective amendments) and supplements to the Registration
Statement and the prospectus used in connection with the Registration
Statement as may be necessary to keep the Registration Statement
continuously effective at all times during the Registration Period, and,
during the Registration Period, comply with the provisions of the 1933 Act
with respect to the disposition of all Registrable Securities of the
Company covered by the Registration Statement until such time as all of
such Registrable Securities have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof as set
forth in the Registration Statement.
c. The Company shall furnish to the Investor if its Registrable
Securities are included in the Registration Statement and its legal counsel
(i) promptly after the same is prepared and publicly distributed, filed
with the SEC, or received by the Company, one copy of the Registration
Statement and any amendment thereto, each preliminary prospectus and
prospectus and each amendment or supplement thereto, and (ii) such number
of copies of a prospectus, including a preliminary prospectus, and all
amendments and supplements thereto and such other documents as the Investor
may reasonably request in order to facilitate the disposition of the
Registrable Securities owned by the Investor.
d. As promptly as practicable after becoming aware of
such event, the Company shall notify the Investor of the happening of any
event, of which the Company has knowledge, as a result of which the
prospectus included in the Registration Statement, as then in effect,
includes an untrue statement of a material fact or omission to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, and use its best efforts promptly to prepare a
supplement or amendment to the Registration Statement to correct such
untrue statement or omission, and deliver such number of copies of such
supplement or amendment to the Investor as the Investor may reasonably
request.
e. The Company shall use its best efforts to prevent the
issuance of any stop order or other suspension of effectiveness of a
Registration Statement, and, if such an order is issued, to obtain the
withdrawal of such order at the earliest possible moment and to notify the
Investor if the Investor holds Registrable Securities being sold (or, in
the event of an underwritten offering, the managing underwriters) of the
issuance of such order and the resolution thereof.
f. The Company shall hold in confidence and not make any disclosure
of information concerning the Investor provided to the Company unless (i)
the Company determines disclosure of such information is necessary to
comply with federal or state securities laws, (ii) the disclosure of such
information is necessary to avoid or correct a misstatement or omission in
any Registration Statement, (iii) the release of such information is
ordered pursuant to a subpoena or other final, non-appealable order from a
court or governmental body of competent jurisdiction, or (iv) such
information has been made generally available to the public other than by
disclosure in violation of this or any other agreement. The Company agrees
that it shall, upon learning that disclosure of such information concerning
the Investor is sought in or by a court or governmental body of competent
jurisdiction or through other means, give prompt notice to the Investor and
allow the Investor, at the Investor's expense, to undertake appropriate
action to prevent disclosure of, or to obtain a protective order for, such
information.
g. The Company shall use its best efforts to cause all the
Registrable Securities covered by the Registration Statement to be listed
on the American Stock Exchange and on each additional national securities
exchange or inter-dealer quotation system of a registered national
securities association on which securities of the same class or series
issued by the Company are then listed, if any, if the listing of such
Registrable Securities is then permitted under the rules of such exchange.
h. The Company shall cooperate with the Investor if it holds
Registrable Securities and the managing underwriter or underwriters, if
any, to facilitate the timely preparation and delivery of certificates
representing the Registrable Securities to be offered pursuant to the
Registration Statement and enable such certificates to be in such
denominations or amounts, as the case may be, as the managing underwriter
or underwriters, if any, or the Investor may reasonably request and
registered in such names as the managing underwriter or underwriters, if
any, or the Investor may request.
i. The Company shall (i) register or qualify the Registrable
Securities covered by the Registration Statement under such securities or
"blue sky" laws of all jurisdictions requiring blue sky registration or
qualification, (ii) prepare and file in such jurisdictions such amendments
(including post-effective amendments) and supplements to such registrations
and qualifications as may be necessary to maintain the effectiveness
thereof at all times during the Registration Period, (iii) take all such
other lawful actions as may be necessary to maintain such registrations and
qualifications in effect at all times during the Registration Period, and
(iv) take all such other lawful actions reasonably necessary or advisable
to qualify the Registrable Securities for sale in such jurisdictions.
j. In connection with any underwritten offering, the Company shall
obtain opinions of counsel to the Company (which counsel and opinions (in
form, scope and substance) shall be reasonably satisfactory to the lead
underwriter) addressed to the underwriters, covering such matters as are
customarily covered in opinions requested in secondary underwritten
offerings (it being agreed that the matters to be covered by such opinions
shall include, without limitation, as of the date of the opinion and as of
the date the Registration Statement is first declared effective or most
recent post- effective amendment thereto, as the case may be, the absence
from the Registration Statement and the Prospectus, including any documents
incorporated by reference therein, of an untrue statement of a material
fact or the omission of a material fact required to be stated therein or
necessary to make the statements therein (in the case of the Prospectus, in
light of the circumstances under which they were made) not misleading,
subject to customary limitations, exceptions and qualifications).
4. OBLIGATIONS OF THE INVESTOR.
In connection with the registration of the Registrable Securities, the
Investor shall have the following obligations:
a. It shall be a condition precedent to the obligations of the Company to
complete the registration of Registrable Securities pursuant to this
Agreement that the Investor furnish to the Company such information
regarding itself, the Registrable Securities held by it and the intended
method of disposition of the Registrable Securities held by it as shall be
reasonably required to effect the registration of such Registrable
Securities and shall execute such documents in connection with such
registration as the Company may reasonably request. At least ten (10) days
prior to the first anticipated filing date of the Registration Statement,
the Company shall notify the Investor of the information the Company
requires from the Investor if the Investor elects to have any of the
Investor's Registrable Securities included in the Registration Statement.
If at least four days prior to the anticipated filing date the Company has
not received the requested information from the Investor or its counsel,
then the Company shall send the Investor and its Counsel a reminder of such
information request. If at least two days prior to the anticipated filing
date the Company still has not received the requested information from the
Investor or its Counsel, then the Company may file the Registration
Statement without including Registrable Securities of the Investor.
b. The Investor by the Investor's acceptance of the Registrable
Securities agrees to cooperate with the Company as reasonably requested by
the Company in connection with the preparation and filing of the
Registration Statement hereunder, unless the Investor has notified the
Company in writing of the Investor's election to exclude all of the
Investor's Registrable Securities from the Registration Statement.
c. The Investor agrees that, upon receipt of any notice from the Company
of the happening of any event of the kind described in Section 3.d. or
3.e., the Investor will immediately discontinue disposition of Registrable
Securities pursuant to the Registration Statement covering such Registrable
Securities until the Investor's receipt of the copies of the supplemented
or amended prospectus contemplated by Section 3.d. or 3.e. and, if so
directed by the Company, the Investor shall deliver to the Company (at the
expense of the Company) or destroy (and deliver to the Company a
certificate of destruction) all copies in the Investor's possession, of the
prospectus covering such Registrable Securities current at the time of
receipt of such notice.
d. The Investor may not participate in any underwritten
registration hereunder unless the Investor (i) agrees to sell the
Investor's Registrable Securities on the basis provided in any underwriting
arrangements, (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements, and
(iii) agrees to pay its pro rata share of all underwriting discounts and
commissions.
e. The Investor shall give notice to the Company when it has
sold all of the Registrable Securities.
5. EXPENSES OF REGISTRATION.
All reasonable expenses, other than underwriting discounts and
commissions, incurred in connection with registrations, filings or
qualifications pursuant to Sections 2 and 3, including, without limitation,
all registration, listing and qualifications fees, printers and accounting
fees, the fees and disbursements of counsel for the Company, shall be borne
by the Company. Notwithstanding the foregoing, except as expressly
provided for in the Securities Purchase Agreement, the Investor shall be
responsible for all expenses, fees and disbursements incurred by such
Investor or on such Investor's behalf, including all fees and disbursements
of counsel to the Investor.
6. INDEMNIFICATION.
In the event any Registrable Securities are included in a Registration
Statement under this Agreement:
a. To the extent permitted by law, the Company will indemnify, hold
harmless and defend (i) the Investor who holds such Registrable Securities,
and (ii) the directors, officers and each person who controls the Investor
within the meaning of the 1933 Act or the Securities Exchange Act of 1934,
as amended (the "1934 Act"), if any, (each, an "Indemnified Person"),
against any losses, claims, damages, liabilities or expenses (joint or
several) (collectively, "Claims") to which any of them may become subject
insofar as such Claims (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon: (i) any
untrue statement or alleged untrue statement of a material fact in a
Registration Statement or the omission or alleged omission to state a
material fact therein required to be stated or necessary to make the
statements therein not misleading, (ii) any untrue statement or alleged
untrue statement of a material fact contained in any preliminary prospectus
if used prior to the effective date of such Registration Statement, or
contained in the final prospectus (as amended or supplemented, if the
Company files any amendment thereof or supplement thereto with the SEC) or
the omission or alleged omission to state therein any material fact
necessary to make the statements made therein, in light of the
circumstances under which the statements therein were made, not misleading,
or (iii) any violation or alleged violation by the Company of the 1933 Act,
the 1934 Act, any other law, including, without limitation, any state
securities law, or any rule or regulation thereunder relating to the offer
or sale of the Registrable Securities pursuant to a Registration Statement
(the matters in the foregoing clauses (i) through (iii) being,
collectively, "Violations"). Subject to the restrictions set forth in
Section 6.d. with respect to the number of legal counsel, the Company shall
reimburse the Investor or controlling person, promptly as such expenses are
incurred and are due and payable, for any legal fees or other reasonable
expenses incurred by them in connection with investigating or defending any
such Claim. Notwithstanding anything to the contrary contained herein, the
indemnification agreement contained in this Section 6a.: (i) shall not
apply to a Claim arising out of or based upon a Violation which occurs in
reliance upon and in conformity with information furnished in writing to
the Company by any Indemnified Person expressly for use in connection with
the preparation of the Registration Statement or any such amendment thereof
or supplement thereto, if such prospectus was timely made available by the
Company pursuant to Section 3.c. hereof; (ii) with respect to any
preliminary prospectus, shall not inure to the benefit of any such person
from whom the person asserting any such Claim purchased the Registrable
Securities that are the subject thereof (or to the benefit of any person
controlling such person) if the untrue statement or omission of material
fact contained in the preliminary prospectus was corrected in the
prospectus, as then amended or supplemented, if such prospectus was timely
made available by the Company pursuant to Section 3.c. hereof; (iii) shall
not be available to the extent such Claim is based on a failure of the
Investor to deliver or to cause to be delivered the prospectus made
available by the Company; and (iv) shall not apply to amounts paid in
settlement of any Claim if such settlement is effected without the prior
written consent of the Company, which consent shall not be unreasonably
withheld. Such indemnity shall remain in full force and effect regardless
of any investigation made by or on behalf of the Indemnified Person and
shall survive the transfer of the Registrable Securities by the Investor
pursuant to Section 9.
b. In connection with any Registration Statement in which the Investor is
participating, the Investor agrees to indemnify, hold harmless and defend,
to the same extent and in the same manner set forth in Section 6.a., the
Company, each of its directors, each of its officers who signs the
Registration Statement, each person, if any, who controls the Company
within the meaning of the 1933 Act or the 1934 Act, any underwriter and any
other stockholder selling securities pursuant to the Registration Statement
or any of its directors or officers or any person who controls such
stockholder or underwriter within the meaning of the 1933 Act or the 1934
Act (collectively and together with an indemnified Person, an "Indemnified
Party"), against any Claim to which any of them may become subject, under
the 1933 Act, the 1934 Act or otherwise, insofar as such Claim arises out
of or is based upon any Violation, in each case to the extent (and only to
the extent) that such violation occurs in reliance upon and in conformity
with written information furnished to the Company by the Investor expressly
for use in connection with such Registration Statement or to the extent
such Claim is based upon any violation or alleged violation by the Investor
of the 1933 Act, 1934 Act or any other law; and the Investor will reimburse
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such Claim; provided, however, that the
indemnity agreement contained in this Section 6.b. shall not apply to
amounts paid in settlement of any Claim if such settlement is effected
without the prior written consent of the Investor, which consent shall not
be unreasonably withheld; provided, further, however, that the Investor
shall be liable under this Section 6.b. for only that amount of a Claim as
does not exceed the net proceeds to the Investor as a result of the sale of
Registrable Securities pursuant to such Registration Statement. Such
indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such Indemnified Party and shall
survive the transfer of the Registrable Securities by the Investor pursuant
to Section 9. Notwithstanding anything to the contrary contained herein,
the indemnification agreement contained in this Section 6.b. with respect
to any preliminary prospectus shall not inure to the benefit of any
Indemnified Party if the untrue statement or omission of material fact
contained in the preliminary prospectus was corrected on a timely basis in
the prospectus, as then amended or supplemented.
c. The Company shall be entitled to receive indemnities from
underwriters, selling brokers, dealer managers and similar securities
industry professionals participating in any distribution, to the same
extent as provided above, with respect to information such persons so
furnished in writing by such persons expressly for inclusion in the
Registration Statement.
d. Promptly after receipt by an Indemnified Person or Indemnified Party
under this Section 6 of notice of the commencement of any action (including
any governmental action), such Indemnified Person or Indemnified Party
shall, if a Claim in respect thereof is to made against any indemnifying
party under this Section 6, deliver to the indemnifying party a written
notice of the commencement thereof, and the indemnifying party shall have
the right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to
assume control of the defense thereof with counsel mutually satisfactory to
the indemnifying party and the Indemnified Person or the Indemnified Party,
as the case may be; provided, however, that an Indemnified Person or
Indemnified Party shall have the right to retain its own counsel with the
fees and expenses to be paid by the indemnifying party, if, in the
reasonable opinion of counsel retained by the indemnifying party, the
representation by such counsel of the Indemnified Person or Indemnified
Party and the indemnifying party would be inappropriate due to actual or
potential differing interests between such Indemnified Person or
Indemnified Party and any other party represented by such counsel in such
proceeding. The failure to deliver written notice to the indemnifying
party within a reasonable time of the commencement of any such action shall
not relieve such indemnifying party of any liability to the Indemnified
Person or Indemnified Party under this Section 6, except to the extent that
the indemnifying party is prejudiced in its ability to defend such action.
The indemnification required by this Section 6 shall be made by periodic
payments of the amount thereof during the course of the investigation or
defense, as such expense, loss, damage or liability is incurred and is due
and payable.
7. CONTRIBUTION.
To the extent any indemnification by an indemnifying party is
prohibited or limited by law or is otherwise unavailable or insufficient to
hold harmless an indemnified party, the indemnifying party agrees to make
the maximum contribution with respect to any amounts for which it would
otherwise be liable under Section 6 to the fullest extent permitted by law;
provided, however, that (i) no contribution shall be made under
circumstances where the maker would not have been liable for
indemnification under the fault standards set forth in Section 6, (ii) no
seller of Registrable Securities guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any seller of Registrable Securities who was not guilty
of such fraudulent misrepresentation, and (iii) contribution by any seller
of Registrable Securities shall be limited in amount to the net amount of
proceeds received by such seller from the sale of such Registrable
Securities.
8. REPORTS UNDER THE 1934 ACT.
With a view to making available to the Investor the benefits of Rule
144 promulgated under the 1933 Act or any other similar rule or regulation
of the SEC that may at any time permit the Investor to sell securities of
the Company to the public without registration ("Rule 144"), the Company
agrees to:
a. make and keep public information available, as those terms are
understood and defined in Rule 144;
b. file with the SEC in a timely manner all reports and other documents
required of the Company under the 1933 Act and the 1934 Act so long as the
Company remains subject to such requirements (it being understood that
nothing herein shall limit the Company's obligations under Section 4.c. of
the Securities Purchase Agreement) and the filing of such reports and other
documents is required for the applicable provisions of Rule 144; and
c. furnish to the Investor so long as the Investor owns Registrable
Securities, promptly upon request, (i) a written statement by the Company
that it has complied with the reporting requirements of Rule 144, the 1933
Act and the 1934 Act, (ii) a copy of the most recent annual or quarterly
report of the Company and such other reports and documents so filed by the
Company, and (iii) such other information as may be reasonably requested to
permit the Investor to sell such securities pursuant to Rule 144 without
registration. Notwithstanding the foregoing, the Company shall furnish to
the Investor, without request, the Company's annual and quarterly reports
filed with the SEC during the one year period after the date hereof.
9. ASSIGNMENT OF REGISTRATION RIGHTS.
The rights to have the Company register Registrable Securities
pursuant to this Agreement shall be automatically assignable by the
Investor to any transferee of all or any portion of Registrable Securities
if: (i) the Investor agrees in writing with the transferee or assignee to
assign such rights, and a copy of such agreement is furnished to the
Company within a reasonable time after such assignment, (ii) the Company
is, within a reasonable time after such transfer or assignment, furnished
with written notice of (a) the name and address of such transferee or
assignee, and (a) the securities with respect to which such registration
rights are being transferred or assigned, (iii) immediately following such
transfer or assignment the further disposition of such securities by the
transferee or assignee is restricted under the 1933 Act and applicable
state securities laws, (iv) at or before the time the Company receives the
written notice contemplated by clause (ii) of this sentence the transferee
or assignee agrees in writing with the Company to be bound by all of the
provisions contained herein, (v) such transfer shall have been made in
accordance with the applicable requirements of the Securities Purchase
Agreement, and (vi) such transferee shall be an "accredited investor" as
that term defined in Rule 501 of Regulation D promulgated under the 1933
Act.
10. AMENDMENT OF REGISTRATION RIGHTS.
Provisions of this Agreement may be amended and the observance thereof
may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of the
Company and the Investor. Any amendment or waiver effected in accordance
with this Section 10 shall be binding upon the Investor and the Company.
11. MISCELLANEOUS.
a. A person or entity is deemed to be a holder of Registrable Securities
whenever such person or entity owns of record such Registrable Securities.
If the Company receives conflicting instructions, notices or elections from
two or more persons or entities with respect to the same Registrable
Securities, the Company shall act upon the basis of instructions, notice or
election received from the registered owner of such Registrable Securities.
b. Any notices required or permitted to be given under the terms of this
Agreement shall be sent by registered or certified mail, return receipt
requested, or delivered personally or by courier and shall be effective
five days after being placed in the mail, if mailed, or upon receipt, if
delivered personally or by courier, in each case addressed to a party. The
addresses for such communications shall be:
If to the Company: Galaxy Nutritional Foods, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xx. Xxxxxxxxxxx X. New
With copy to: Xxxxx & Xxxxxxxxx LLP
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
If to the Buyer: Fromageries Bel S.A.
00, Xx Xxxxxxxxxxx 00000
Xxxxx, Xxxxxx
Telephone: 00 00 0 00 00 00 00
Telecopy: 00 33 1 40 07 75 17
Attention: Xxxx de Poncins
And Fromageries Bel S.A.
00, Xx Xxxxxxxxxxx 00000
Xxxxx, Xxxxxx
Telephone: 00 00 0 00 00 00 72
Telecopy: 00 33 1 40 07 74 00
Attention: Xxxxxx Xxxxxxxxx
With a copy to: Xxxxxxxxx Xxxxxxx, P.A.
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Each party shall provide notice to the other party of any change in
address.
c. Failure of any party to exercise any right or remedy under this
Agreement or otherwise, or delay by a party in exercising such right or
remedy, shall not operate as a waiver thereof.
d. This Agreement shall be enforced, governed by and construed in
accordance with the laws of the State of Florida applicable to agreements
made and to be performed entirely within such State. In the event that any
provision of this Agreement is invalid or unenforceable under any
applicable statute or rule of law, then such provision shall be deemed
inoperative to the extent that it may conflict therewith and shall be
deemed modified to conform with such statute or rule of law. Any provision
hereof which may prove invalid or unenforceable under any law shall not
affect the validity or enforceability of any other provision hereof.
e. This Agreement and the Securities Purchase Agreement constitute the
entire agreement among the parties hereto with respect to the subject
matter hereof and thereof. There are no restrictions, promises, warranties
or undertakings, other than those set forth or referred to herein and
therein. This Agreement and the Securities Purchase Agreement supersede
all prior agreements and understandings among the parties hereto with
respect to the subject matter hereof and thereof.
f. Subject to the requirements of Section 9 hereof, this Agreement shall
inure to the benefit of and be binding upon the successors and assigns of
each of the parties hereto.
g. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
h. This Agreement may be executed in two or more identical
counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same agreement. This Agreement, once executed
by a party, may be delivered to the other party hereto by facsimile
transmission of a copy of this Agreement bearing the signature of the party
so delivering this Agreement.
i. Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and deliver
all such other agreements, certificates, instruments and documents, as the
other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of day and year first above written.
"Company"
GALAXY NUTRITIONAL FOODS, INC.
By: /s/ Xxxxxxxxxxx X. New
----------------------
Xxxxxxxxxxx X. New, Chief Executive Officer
"Buyer"
FROMAGERIES BEL S.A.
By: /s/ Xxxx de Poncins
-------------------
Xxxx de Poncins, Vice President of Strategy
and Development
By: /s/ Xxxxxx Xxxxxxxxx
--------------------
Xxxxxx Xxxxxxxxx, Vice President of Finance
