-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, DWgcQb1TwJLNRMfaHkeeQ5Uwy9SaDJbw7cvMGrQX91VvM2GwiEcOIEd6i57YCitw i705AFswrlPDcPrqiol78g== 0001144204-07-017160.txt : 20070404 0001144204-07-017160.hdr.sgml : 20070404 20070403203019 ACCESSION NUMBER: 0001144204-07-017160 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20070404 DATE AS OF CHANGE: 20070403 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: GALAXY NUTRITIONAL FOODS INC CENTRAL INDEX KEY: 0000819527 STANDARD INDUSTRIAL CLASSIFICATION: DAIRY PRODUCTS [2020] IRS NUMBER: 251391475 STATE OF INCORPORATION: DE FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-39072 FILM NUMBER: 07746650 BUSINESS ADDRESS: STREET 1: 2441 VISCOUNT ROW CITY: ORLANDO STATE: FL ZIP: 32809 BUSINESS PHONE: 4078555500 MAIL ADDRESS: STREET 1: 2441 VISCOUNT ROW CITY: ORLANDO STATE: FL ZIP: 32809 FORMER COMPANY: FORMER CONFORMED NAME: GALAXY FOODS CO DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: GALAXY CHEESE CO DATE OF NAME CHANGE: 19920302 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: DELUCA FREDERICK A CENTRAL INDEX KEY: 0001076614 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: BUSINESS PHONE: 2038774281 MAIL ADDRESS: STREET 1: 325 BIC DRIVE STREET 2: C/O DOCTORS ASSOCIATES INC CITY: MILFORD STATE: CT ZIP: 06460 SC 13D/A 1 v070725_sc13da-galaxy.txt - ------------------------------------ ------------------------ CUSIP No. 36317Q 10 4 Page 1 of 7 Pages - ------------------------------------ ------------------------ UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 4)* GALAXY NUTRITIONAL FOODS, INC. -------------------------------------------------------------------- (Name of Issuer) Common Stock, par value $0.01 per share -------------------------------------------------------------------- (Title of Class of Securities) 36317Q 10 4 -------------------------------------------------------------------- (CUSIP Number) Frederick A. DeLuca c/o Doctor's Associates, Inc. 325 Bic Drive Milford, Connecticut (203) 877-4281 -------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) March 31, 2007 -------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. |_| Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See ss. 240.13d-7 for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). - ------------------------------------ ------------------------ CUSIP No. 36317Q 10 4 Page 2 of 7 Pages - ------------------------------------ ------------------------ - -------------------------------------------------------------------------------- 1) NAME OF REPORTING PERSONS S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Frederick A. DeLuca - -------------------------------------------------------------------------------- 2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a)|_| (b)|_| - -------------------------------------------------------------------------------- 3) SEC USE ONLY - -------------------------------------------------------------------------------- 4) SOURCE OF FUNDS (See Instructions) PF - -------------------------------------------------------------------------------- 5) CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) - ------------------------------------------------------------------------------- 6) CITIZENSHIP OR PLACE OF ORGANIZATION USA - -------------------------------------------------------------------------------- NUMBER OF 7) SOLE VOTING POWER SHARES BENEFICIALLY 12,718,171 (1) OWNED BY -------------------------------------------------------- EACH 8) SHARED VOTING POWER REPORTING PERSON 0 WITH -------------------------------------------------------- 9) SOLE DISPOSITIVE POWER 12,718,171 (1) -------------------------------------------------------- 10) SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 12,718,171 (1) - -------------------------------------------------------------------------------- 12) CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) - -------------------------------------------------------------------------------- 13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 49% - -------------------------------------------------------------------------------- 14) TYPE OF REPORTING PERSON (See Instructions) IN - -------------------------------------------------------------------------------- - ------------------------------------ ------------------------ CUSIP No. 36317Q 10 4 Page 3 of 7 Pages - ------------------------------------ ------------------------ (1) Represents (i) 3,869,842 shares of common stock of the Issuer held by Mr. DeLuca, (ii) 500,000 shares of common stock of the Issuer issuable to Mr. DeLuca upon the exercise of certain warrants, (iii) 7,671,726 shares of Common Stock of the Issuer issuable upon the conversion of a convertible promissory note in the principal amount of $2,685,104.17 (the "Note"), and (iv) 676,603 shares of common stock issuable upon conversion of interest in the amount of $236,811.27 that is accrued as of March 31, 2007. Does not include potential additional 1,513,034 shares of common stock issuable upon conversion of interest on the Note that may accrue from April 1, 2007 through the maturity date of the Note on October 19, 2008. - ------------------------------------ ------------------------ CUSIP No. 36317Q 10 4 Page 4 of 7 Pages - ------------------------------------ ------------------------ Item 1. Security and Issuer. This Amendment No. 4 to Schedule 13D, which amends the statement on Schedule 13D originally filed as of October 6, 2004, as it has previously been amended by Amendment No. 1 to Schedule 13D filed June 27, 2005, Amendment No. 2 to Schedule 13D filed on September 27, 2005 and Amendment No. 3 to Schedule 13D filed on July 25, 2006, relates to the Common Stock, par value $0.01 per share, of Galaxy Nutritional Foods, Inc., a Delaware corporation (the "Company" or the "Issuer"), whose principal executive offices are located at 5955 T.G. Lee Blvd. Suite 201, Orlando, Florida 32822. Item 2. Identity and Background. (a) This Schedule 13D/A is being filed by Frederick A. DeLuca. (b) - (f) No changes. Item 3. Source and Amount of Funds or Other Consideration. This Amendment reflects an increase of one percent (from 48% to 49%) in the beneficial ownership of Frederick DeLuca as a result of the accrual of interest due to Mr. DeLuca through March 31, 2007 pursuant to a $2,685,104.17 unsecured convertible note (the "Note") issued by the Company to Mr. DeLuca on July 19, 2006. In addition, this Amendment reflects the agreement of the Company and Mr. DeLuca to extend the maturity date of the Note from October 19, 2007 to October 19, 2008 pursuant to a Note Modification Agreement dated March 14, 2007. The Note will continue to accrue interest at 12.5% per annum. Principal, together with any accrued and unpaid interest on the Note, is convertible at any time prior to payment into shares of the Company's common stock at a conversion price of $0.35 per share. As a result of the extension of the Note, Mr. DeLuca could receive an additional 974,949 shares of the Company's common stock on the additional one-year of interest that will accrue to the extent such interest in fact accrues and is not paid in cash and Mr. DeLuca elects to convert the accrued interest into shares of common stock. Since Mr. DeLuca has no current right to convert interest that has not yet accrued, shares of common stock that he may be able to receive on conversion of any interest which accrues from April 1, 2007 to the maturity date are not reported in his beneficial ownership. As a result of the additional one-year of interest that would accrue by October 19, 2008 (compared to the amount of interest that would accrue through the original maturity date of October 19, 2007), Mr. DeLuca's "beneficial ownership" in the Company, within the meaning of the Securities Exchange Act of 1934, could increase from approximately 50% to nearly 52%. The foregoing description of the Note is qualified in its entirety by reference to such agreement which was filed as an exhibit to the Schedule 13D/A filed with the Securities and Exchange Commission on July 7, 2006. The foregoing description of the Note Modification Agreement is qualified in its entirety by reference to such agreement which is filed as exhibit to this Schedule 13D/A and is hereby incorporated herein by reference. - ------------------------------------ ------------------------ CUSIP No. 36317Q 10 4 Page 5 of 7 Pages - ------------------------------------ ------------------------ Item 4. Purpose of the Transaction. The purpose of making the loan was to refinance the Company's existing $1,200,000 due to Mr. DeLuca on June 15, 2006, to pay $285,104.17 due to Mr. DeLuca as a result of the Company's inability to register certain registrable securities by a specified effective date deadline pursuant to the terms of that certain Registration Rights Agreement dated as of October 6, 2004, and with the additional proceeds of $1,200,000 contributed by Mr. DeLuca to allow the Company to repay an aggregate of $1,200,000 of other promissory notes due to other third parties which also matured on June 15, 2006. The shares received upon conversion of the Note and the shares purchasable upon exercise of warrants held by Mr. DeLuca, are all restricted securities that have not been registered under the Securities Act of 1933, as amended, and may not be offered or sold in the United States absent registration or applicable exemptions from registration requirements. The additional amount of interest that will accrue from the extension of the Note pursuant to the Note Modification Agreement and the additional shares that could be issued if the interest is not paid but is instead converted into shares, could increase Mr. DeLuca's beneficial ownership to nearly 52%. Item 5. Interest in Securities of the Issuer. (a) Based upon information provided by the Company to Mr. DeLuca, the approximate percentage of Common Stock reported as beneficially owned by Mr. DeLuca is based on 17,110,016 shares outstanding, which is the total number of shares of Common Stock outstanding as of March 31, 2007, plus 3,869,842 shares of common stock owned by Mr. DeLuca, the 7,671,726 shares of Common Stock underlying conversion of the principal of the Note, 676,603 shares of Common Stock underlying conversion of interest that has accrued on the Note through March 31, 2007, and the 500,000 shares of Common Stock underlying warrants owned by Mr. DeLuca. As of the close of business on March 31, 2007, Mr. DeLuca owns directly and beneficially 12,718,171 shares of Common Stock, including the foregoing shares of Common Stock underlying the Note and the warrants. Consequently, Mr. DeLuca beneficially owns approximately 49% of the shares outstanding for purposes of this Schedule 13D. (b) No changes. (c) Aside from the potential effect of the Note Modification Agreement (which may potentially increase the number of shares of common stock into which Mr. DeLuca may convert interest when and to the extent it accrues and is not paid in cash), Mr. DeLuca has not engaged in any transactions in the Common Stock during the 60 days preceding the date of the filing of this Amendment No. 4 to Schedule 13D. The Note Modification Agreement extends the Maturity Date of the Note by one year to October 19, 2008. (d) No changes. - ------------------------------------ ------------------------ CUSIP No. 36317Q 10 4 Page 6 of 7 Pages - ------------------------------------ ------------------------ (e) No changes. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. Except as described in Item 5 hereof, Mr. DeLuca does not have any contracts, arrangements, understandings or relationships (legal or otherwise) with any person with respect to any securities of the Company, including, but not limited to, transfer or voting of any securities, finder's fees, joint ventures, loan or option arrangements, put or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies. Item 7. Material to Be Filed as Exhibits Exhibit 1 Note Modification Agreement dated as of March 14, 2007 by and between Fred DeLuca and the Company. - ------------------------------------ ------------------------ CUSIP No. 36317Q 10 4 Page 7 of 7 Pages - ------------------------------------ ------------------------ SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: April 3, 2007 /s/ Frederick A. DeLuca - ----------------------- Frederick A. DeLuca EX-1 2 v070725_ex-1.txt NOTE MODIFICATION AGREEMENT THIS NOTE MODIFICATION AGREEMENT (this "Agreement") is entered into this 14th day of March, 2007 (the "Effective Date") by and between Frederick A. DeLuca, an individual ("Holder"), whose address is c/o Doctor's Associates, Inc., 325 Bic Drive, Milford, Connecticut 06460, and Galaxy Nutritional Foods, Inc., a Delaware corporation ("Maker") with an address at 5955 T.G. Lee Blvd., Suite 201, Orlando, Florida 32822. RECITALS: A. Maker is the maker under that certain promissory note, dated July 19, 2006 ("Note") in the original principal amount of TWO MILLION SIX HUNDRED EIGHTY FIVE THOUSAND ONE HUNDRED FOUR AND 17/100THS DOLLARS ($2,685,104.17), which Note is held by Holder. B. The Note was issued pursuant to that certain Note Purchase Agreement dated as of July 19, 2006 between the Holder and Maker (the "Note Purchase Agreement"). C. The Note had an original Maturity Date of October 19, 2007. D. Maker and Holder have agreed to modify the Maturity Date, as more specifically provided for in this Agreement. NOW THEREFORE, IN CONSIDERATION OF TEN DOLLARS ($10.00) and other good and valuable considerations, the receipt, adequacy and sufficiency of which are hereby acknowledged, Maker and Holder hereby agree as follows: 1. Recitals; Capitalized Terms. The foregoing Recitals are true and correct and are incorporated herein by this reference, as if set forth in their entirety. Any capitalized term not defined in this Agreement shall have the meaning ascribed to it in the Note and/or the Note Purchase Agreement, as applicable. 2. Extension of Maturity Date. The Maturity Date is hereby modified to be October 19, 2008. 3. Estoppel. (a) Balances under the Note. Maker and Holder agree that the currentoutstanding principal balance due under the Note is $2,685,104.17 and the accrued and unpaid interest on such amount as of January 31, 2007 is $ 181,803.93. (b) Ratification; No Claims; No Defaults. As of the Effective Date of this Agreement, the Note and Note Purchase Agreement are each ratified and confirmed as written, except as modified by this Agreement. Holder acknowledges and agrees that no Default or Event of Default has occurred under the Note or Note Purchase Agreement. 4. Cooperation. Maker and Holder agree from time to time, as may be reasonably requested by the other, to execute and deliver such further instruments and documents and do all matters and things which may be convenient or necessary to more effectively and completely carry out the intention on the Note and this Agreement. 5. Amendments. This Agreement, the Note Purchase Agreement, the Note and any other loan documents may not be modified, amended, changed or terminated orally, but only by an agreement in writing executed by Maker and Holder. IN WITNESS WHEREOF, Maker And Holder have each executed and delivered this Agreement as of the Effective Date, first above written. MAKER: ------ GALAXY NUTRITIONAL FOODS, INC. By: /s/ David H. Lipka ------------------------------------ HOLDER: ------- /s/ Frederick A. DeLuca ------------------------------------ Frederick A. DeLuca -----END PRIVACY-ENHANCED MESSAGE-----