Execution Copy
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TERMINATION, SETTLEMENT AND RELEASE AGREEMENT
THIS
TERMINATION, SETTLEMENT AND RELEASE AGREEMENT (this "Agreement")
is
entered into as of this 20th day of July,
2005 but is effective as of February
15, 2005 (the "Effective Date") between
Galaxy Nutritional Foods, Inc., a
Delaware corporation ("Galaxy"), and
Fromageries Bel, S.A., a French corporation
("Distributor") (each of Galaxy and
Distributor is hereinafter sometimes
referred to as a "Party" and both are
sometimes hereinafter, collectively,
referred to herein as the "Parties"), as
follows:
Recitals
WHEREAS,
the Parties are party to that certain Master Distribution and
License Agreement entered into as of May
22, 2003 and certain other arrangements
and understandings, whether written or oral
(collectively, the "Prior
Agreement"), wherein the parties set forth
the terms of their distribution
relationship for Galaxy's healthy cheese
and dairy related and dairy alternative
products in the Territory (the
"Distribution Relationship").
WHEREAS,
the Parties have decided to terminate the Prior Agreement and
the
Distribution Relationship.
WHEREAS,
the Parties desire to enter into this Agreement to set forth
the
terms of the termination of the Prior
Agreement and Distribution Relationship.
NOW,
THEREFORE, in consideration of the mutual promises and
covenants
between the Parties contained herein, and
other good and valuable consideration,
the receipt and sufficiency of which are
hereby acknowledged, Galaxy and
Distributor hereby agree as follows:
1.
Recitals; Defined Terms. All of the foregoing recitals are true
and
correct and are incorporated herein.
Capitalized terms used but not defined
herein shall have the same meaning ascribed
thereto in the Prior Agreement.
2.
Termination of Prior Agreement.
(a) The
Parties acknowledge, agree and confirm that the Prior
Agreement,
Galaxy's engagement of Distributor pursuant
thereto and the Distribution
Relationship is terminated effective as of
the Effective Date hereof, and that
Distributor shall not, and shall have no
right or authority to, perform any
further services or undertake any actions
for Galaxy or otherwise involving the
Products. Neither Party shall represent
itself to third parties as a
representative or distributor of the other
Party hereto or as otherwise having
any relationship with the other Party
hereto with respect to the Products. Each
of the Parties hereby agrees to take such
further actions and execute and
deliver such further documents and
instruments as may be reasonably requested by
the other Party hereto in order to document
the termination of Distribution
Relationship and to revoke any and all
prior authorization or right that may
have been expressly or impliedly granted by
such Party to the other Party
hereto.
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(b)
Distributor agrees to cease use of and avoid any reference to
the
"Galaxy" name(s), trademark(s) or logo(s),
including the Logo and to not keep
nor register the Logo and/or similar
trademarks or names on Galaxy's behalf.
Galaxy agrees to cease use of and avoid any
reference to the "Fromageries Bel"
name(s), trademark(s) or logo(s), including
the Trademarks. Notwithstanding
anything to the contrary in this Agreement,
Galaxy acknowledges that Distributor
has in the past and will continue in the
future to engage in the cheese and
dairy products manufacturing and
distribution business, including the
development of dairy-related and dairy
alternative products and new cheese and
dairy products, and nothing stated herein
shall preclude Distributor from
engaging in the development,
implementation, marketing, manufacture,
distribution, sales and other activities
involving healthy cheese and dairy
related and dairy alternative products,
including vegetable fat-based products
(collectively, "Cheese and Dairy
Business"), both within and outside of the
Territory to the extent Distributor's
activities in such area do not involve (i)
the distribution or sale of the Products
identified in the Prior Agreement and
(ii) use of the Know How or other
confidential information of Galaxy provided to
Distributor in connection with the Prior
Agreement. Galaxy hereby expressly
acknowledges and agrees that Distributor
may engage in such activities both
within and outside of the Territory
utilizing skills or knowledge acquired in
conducting its business and in the
development of new products, including skills
and knowledge developed or acquired while
the Prior Agreement was in effect, but
excluding the use of the Know How and other
confidential information of Galaxy
provided to Distributor in connection with
the Prior Agreement. Distributor
hereby expressly acknowledges and agrees
that Galaxy may continue in the future
to engage in the Cheese and Dairy Business,
distribute and sell the Product or
products similar to the Product both within
and outside the Territory and to
engage other distributors to distribute and
sell the Product or products similar
to the Product both within and outside the
Territory. Distributor hereby
expressly acknowledges and agrees that
Galaxy may engage in such activities
utilizing skills or knowledge acquired in
connection with its business and in
the development of new products, including
skills and knowledge developed or
acquired while the Prior Agreement was in
effect.
3.
Settlement and Release; Payment.
(a) Each
Party acknowledges and agrees that all amounts due to it from
the
other Party under the Prior Agreement have
been paid in full, and that such
prior payments constitute complete
satisfaction of any and all rights, claims
and/or causes of action that such Party may
have against the other Party or any
of its agents, representatives, partners,
officers, directors and/or employees.
In consideration for the execution by the
Parties of this Agreement and other
good and valuable consideration, receipt of
which is hereby acknowledged, each
Party hereby releases and forever
discharges the other Party, any other persons
who directly, or indirectly through one or
more intermediaries, controls, or is
controlled by, or is under common control
with, such Party, and any and all
predecessor and successor entities and
organizations, including their former and
current agents, representatives,
shareholders, partners, officers, directors and
employees, and each of them, from any and
all claims, demands, damages,
lawsuits, obligations, promises,
administrative actions, charges and causes of
action, both known or unknown, in law or in
equity, of any kind whatsoever,
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2
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which have arisen or may arise, which such
Party ever had, now has, or may at
any time in the future have against any
other Party, including specifically but
not by way of limitation, any and all
claims for compensation payable by one
Party to the other from March 22, 2003 up
to and including the date of this
Agreement, any and all claims arising out
of Distributor's engaging in product
improvement, testing and reformulations of
Galaxy's Products, both from Galaxy's
facilities in the United States and
Distributor's facilities in France thru the
date of this Agreement, and all development
costs, expenses and legal fees or
loss of business incurred by either party
as a result of or in connection with
the transactions contemplated hereby. Each
party hereto acknowledges and hereby
agrees that upon the termination of the
Prior Agreement, the other party hereto
shall not be liable or obligated to such
party with respect to any payments,
future profits, exemplary, special or
cons
