As
filed with the Securities and Exchange Commission on December 2,
2005
Registration
No.
333-
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
______________________________
THE
HAIN CELESTIAL GROUP, INC.
(Exact
name of registrant as specified in its charter)
|
Delaware
|
22-3240619
|
|
(State
or other jurisdiction of
incorporation
or organization)
|
(I.R.S.
Employer
Identification
Number)
|
58
South Service Road
Melville,
New York 11747
(631)
730-2200
(Address,
including zip code, and telephone number, including area code,
of
registrant’s principal executive offices)
Irwin
D.
Simon
Chairman
of the Board, President and Chief Executive Officer
The
Hain
Celestial Group, Inc.
58
South
Service Road
Melville,
New York 11747
(631)
730-2200
(Name,
address, including zip code, and telephone number,
including
area code, of agent for service)
______________________________
copy
to:
Geoffrey
E. Liebmann, Esq.
Cahill
Gordon & Reindel LLP
80
Pine
Street
New
York,
New York 10005
(212)
701-3000
______________________________
Approximate
date of commencement of proposed sale to the public:
From
time to time after this registration statement becomes effective.
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, other
than securities offered only in connection with dividend or interest
reinvestment plans, 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
this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. [ ]
If
this
Form is a post-effective amendment to a registration statement filed pursuant
to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. [ ]
————————————
CALCULATION
OF REGISTRATION FEE
|
Title
of Each Class of
Securities
to be Registered
|
Amount
to be Registered
|
Proposed
Maximum
Offering
Price
Per
Share(1)
|
Proposed
Maximum
Aggregate
Offering Price(1)
|
Amount
of Registration Fee
|
|
Common
stock, $0.01 par value per share
|
6,090,351
|
$22.225
|
$135,358,051
|
$14,483.31
|
|
(1)
|
Estimated
pursuant to Rule 457(c) solely for the purpose of calculating the
amount
of the registration fee based on the average of the high and low
prices of
the Company’s Common Stock as reported on the Nasdaq National Market
System on November 30, 2005.
|
————————————
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, as amended, or until this Registration Statement shall
become effective on such date as the Commission, acting pursuant to
Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. The selling
stockholder may not sell these securities until the registration statement
filed
with the Securities and Exchange Commission is effective. This prospectus
is not
an offer to sell these securities and it is not soliciting offers to buy
these
securities in any state where the offer or sale is not
permitted.
SUBJECT
TO COMPLETION, DATED DECEMBER 2, 2005
PROSPECTUS
THE
HAIN CELESTIAL GROUP, INC.
6,090,351
Shares of Common Stock
This
prospectus relates to the offer and sale of an aggregate of 6,090,351
shares of the common stock of The Hain Celestial Group, Inc. by the selling
stockholder listed under the heading “Selling Stockholder.” We will not receive
any proceeds from the sale by the selling stockholder of the common stock.
Our
common stock is quoted on The Nasdaq National Market (“Nasdaq”)
under
the symbol HAIN. The last reported sales price of our common stock as reported
by Nasdaq on November 30, 2005 was $22.33 per share.
The
selling stockholder identified in this prospectus, or its registered assigns,
may offer the shares from time to time through public or private transactions
at
prevailing market prices, at prices related to prevailing market prices or
at
privately negotiated prices.
___________________________
See
“Risk
Factors” beginning on page 1 for a discussion of certain factors which should be
considered in an investment in the securities offered
hereby.
___________________________
THESE
SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE
COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
___________________________
The
date
of this prospectus is
,
2005.
___________________________
TABLE
OF CONTENTS
| Page | |
|
RISK
FACTORS
|
1
|
|
USE
OF PROCEEDS
|
8
|
|
SELLING
STOCKHOLDER
|
9
|
|
DESCRIPTION
OF CAPITAL STOCK
|
11
|
|
PLAN
OF DISTRIBUTION
|
13
|
|
LEGAL
MATTERS
|
14
|
|
EXPERTS
|
14
|
|
WHERE
YOU CAN FIND MORE INFORMATION
|
14
|
___________________________
You
should rely only on the information contained or incorporated by reference
in
this prospectus or to which we have referred you. We have not authorized anyone
to provide you with information that is different. This prospectus may be used
only where it is legal to sell these securities. The information contained
or
incorporated by reference in this prospectus may be accurate only on the date
of
this prospectus.
Certain
statements contained in this prospectus constitute “forward-looking statements”
within the meaning of Section 27A of the Securities Act of 1934, or the
“Securities
Act,”
and
Section 21E of the Securities Exchange Act of 1934, or the “Exchange
Act.”
Such
forward-looking statements involve known and unknown risks, uncertainties and
other factors which may cause our actual results, levels of activity,
performance or achievements, or industry results, to be materially different
from any future results, levels of activity, performance or achievements
expressed or implied by such forward-looking statements. Such factors include,
among others, the following: general economic and business conditions; our
ability to implement our business strategies; our ability to meet anticipated
levels of sales and to not exceed anticipated levels of expense; our ability
to
complete pending acquisitions and to integrate completed acquisitions; our
ability to achieve anticipated benefits from recently initiated alliances and
joint ventures; our ability to obtain financing when needed, whether for
acquisitions, capital or other investments or general corporate purposes; our
reliance on third party distributors, manufacturers and suppliers; competition;
changes in customer preferences; retention of key personnel; compliance with
government regulations; international sales and operations; the factors
discussed in this prospectus (including under the caption “Risk Factors”); and
other risks detailed from time-to-time in our reports filed with the Securities
and Exchange Commission (the “SEC”),
including Amendment No. 1 to our report on Form 10-K for the fiscal year ended
June 30, 2005. As a result of the foregoing and other factors, no assurance
can
be given as to the future results, levels of activity and achievements and
neither Hain nor any person assumes responsibility for the accuracy and
completeness of these statements. If one or more of these risks or uncertainties
materialize, or if the underlying assumptions prove incorrect, actual outcomes
may vary materially from those indicated. The words “expect,” “estimate,”
“anticipate,” “predict” and similar expressions are intended to identify
forward-looking statements.
Our
principal executive offices are located at 58 South Service Road, Melville,
New
York 11747, and our telephone number is 631-730-2200. Our World Wide Web site
address is www.hain-celestial.com. The information on our website is not part
of
this prospectus.
-ii-
RISK
FACTORS
Prospective
investors should carefully consider the following factors and the other
information contained in this prospectus before purchasing any shares of our
common stock. If any of the following risks and uncertainties develop into
actual events, our business, financial condition or results of operations could
be materially adversely affected. In such case, the trading price of our common
stock could decline, and you may lose all or part of your
investment.
Hain’s
Markets Are Highly Competitive
Hain
operates in highly competitive geographic and product markets, and some of
its
markets are dominated by competitors with greater resources. Hain cannot be
certain that it could successfully compete for sales to distributors or stores
that purchase from larger, more established companies that have greater
financial, managerial, sales and technical resources. In addition, Hain competes
for limited retailer shelf space for its products. Larger competitors, such
as
mainstream food companies including General Mills, Nestle S.A., Kraft Foods,
Groupe Danone, Kellogg Company and Sara Lee Corporation, also may be able to
benefit from economies of scale, pricing advantages or the introduction of
new
products that compete with Hain’s products. Retailers also market competitive
products under their own private labels.
The
beverage market is large and highly competitive. The tea portion of the beverage
market is also highly competitive. Competitive factors in the tea industry
include product quality and taste, brand awareness among consumers, variety
of
specialty tea flavors, interesting or unique product names, product packaging
and package design, supermarket and grocery store shelf space, alternative
distribution channels, reputation, price, advertising and promotion. Hain’s
principal competitors on a national basis in the specialty tea market are Thomas
J. Lipton Company, a division of Unilever PLC, and R.C. Bigelow, Inc. Unilever
has substantially greater financial resources than Hain. In addition, in April
2004, Tazo Tea Company (a subsidiary of Starbucks Corporation) and Kraft Foods
Global, Inc. announced a licensing agreement whereby Tazo products may gain
additional access to grocery channels through placement by Kraft, which has
substantially greater financial resources than Hain. Additional competitors
include a number of regional specialty tea companies. There may be potential
entrants which are not currently in the specialty tea market who may have
substantially greater resources than Hain. Private label competition in the
specialty tea category is currently minimal, but growing.
In
the
future, competitors may introduce other products that compete with Hain’s
products and these competitive products may have an adverse effect on Hain’s
business, results of operations and financial condition.
Consumer
Preferences for Hain’s Products Are Difficult to Predict and May Change
A
significant shift in consumer demand away from Hain’s products or Hain’s failure
to maintain its current market position could reduce Hain’s sales or the
prestige of its brands in its markets, which could harm Hain’s business. While
Hain continues to diversify its product offerings, Hain cannot be certain that
demand for its products will continue at current levels or increase in the
future.
Hain’s
business is primarily focused on sales of natural and organic products in
markets geared to consumers of natural foods, specialty teas, non-dairy
beverages, cereals, breakfast bars, canned soups and vegetables, snacks and
cooking oils, which, if consumer demand for such categories were to decrease,
could harm its business. Consumer trends change based on a number of possible
factors, including:
| · |
nutritional
values, such as a change in preference from fat free to reduced fat
to no
reduction in fat; and
|
| · |
a
shift in preference from organic to non-organic and from natural
products
to non-natural products.
|
In
addition, Hain has other product categories, such as medically-directed food
products, kosher foods and other specialty food items, as well as natural health
and beauty care products. Hain is subject to evolving consumer preferences
for
these products.
-1-
Hain’s
Acquisition StrategyExposes Hain to
Risk
Hain
intends to continue to grow its business in part through the acquisition of
new
brands, both in the United States and internationally. Hain’s acquisition
strategy is based on identifying and acquiring brands with products that
complement Hain’s existing product mix. Hain cannot be certain that it will be
able to:
| · |
successfully
identify suitable acquisition candidates;
|
| · |
negotiate
identified acquisitions on terms acceptable to Hain; or
|
| · |
obtain
the necessary financing to complete such acquisitions.
|
Hain
may
encounter increased competition for acquisitions in the future, which could
result in acquisition prices Hain does not consider acceptable. Hain is unable
to predict whether or when any prospective acquisition candidate will become
available or the likelihood that any acquisition will be completed.
Hain’s
Future Success May Be Dependent on Its Ability to Integrate Companies That
It
Acquires
Hain’s
future success may be dependent upon its ability to effectively integrate new
brands that it acquires, including its ability to realize potentially available
marketing opportunities and cost savings, some of which may involve operational
changes. Hain cannot be certain:
| · |
as
to the timing or number of marketing opportunities or amount of cost
savings that may be realized as the result of its integration of
an
acquired brand;
|
| · |
that
a business combination will enhance Hain’s competitive position and
business prospects;
|
| · |
that
Hain will not experience difficulties with customers, personnel or
other
parties as a result of a business combination; or
|
| · |
that,
with respect to its acquisitions outside the United States, Hain
will not
be affected by, among other things, exchange rate risk.
|
In
addition, Hain cannot be certain that it will be successful in:
| · |
integrating
an acquired brand’s distribution channels with Hain’s own;
|
| · |
coordinating
sales force activities of an acquired company or in selling the products
of an acquired company to Hain’s customer base; or
|
| · |
integrating
an acquired company into Hain’s management information systems or
integrating an acquired company’s products into Hain’s product
mix.
|
Additionally,
integrating an acquired company into Hain’s existing operations will require
management resources and may divert Hain’s management from its day-to-day
operations. If Hain is not successful in integrating the operations of acquired
companies, Hain’s business could be harmed.
Hain
Is Dependent Upon the Services of Its Chief Executive Officer
Hain
is
highly dependent upon the services of Irwin D. Simon, its Chairman of the Board,
President and Chief Executive Officer. Hain believes Mr. Simon’s reputation as
Hain’s founder and his expertise and knowledge in the natural and organic
products market are critical factors in Hain’s continuing growth. The loss of
the services of Mr. Simon could harm Hain’s business.
Hain
Relies on Independent Brokers and Distributors for a Substantial Portion of
Its
Sales
Hain
relies upon sales efforts made by or through non-affiliated food brokers to
distributors and other customers. The loss of, or business disruption at, one
or
more of these distributors or brokers may harm Hain’s business. If Hain was
required to obtain additional or alternative distribution and food brokerage
agreements or arrangements in the future, Hain cannot be certain that it will
be
able to do so on satisfactory terms or in a timely manner. In fiscal 2005,
one
of Hain’s distributors, United Natural Foods, Inc., or “UNFI,”
accounted for approximately 22% of
-2-
Hain’s
net sales. Two of Hain’s distributors, UNFI and Tree of Life, accounted for
approximately 20% and 12%, respectively, of Hain’s net sales for the fiscal year
ended June 30, 2004, and approximately 18% and 15%, respectively, for the year
ended June 30, 2003. Hain’s inability to enter into satisfactory brokerage
agreements may inhibit Hain’s ability to implement its business plan or to
establish markets necessary to develop its products successfully. Food brokers
act as selling agents representing specific brands on a non-exclusive basis
under oral or written agreements generally terminable at any time on 30 days’
notice, and receive a percentage of net sales as compensation. Distributors
purchase directly for their own account for resale. In addition, the success
of
Hain’s business depends, in large part, upon the establishment and maintenance
of a strong distribution network.
Loss
of One or More of Hain’s Manufacturing Facilities Could Harm Hain’s Business
For
the
years ended June 30, 2005, 2004 and 2003, approximately 47%, 39% and 42%,
respectively, of Hain’s revenue was derived from products manufactured at Hain’s
manufacturing facilities. An interruption in or the loss of operations at one
or
more of these facilities, or the failure to maintain Hain’s labor force at one
or more of these facilities, could delay or postpone production of Hain’s
products, which could have a material adverse effect on Hain’s business, results
of operations and financial condition until Hain could secure an alternate
source of supply.
Hain
Relies on Independent Co-Packers to Produce Some or Most of Its Products
During
fiscal 2005, 2004 and 2003, approximately 53%, 61% and 58%, respectively, of
Hain’s revenue was derived from products manufactured at independent co-packers.
In the U.S., Hain presently obtains:
| · |
all
of its requirements for non-dairy beverages from five co-packers,
all of
which are under contract or other arrangements;
|
| · |
all
of its U.S. requirements for rice cakes from one co-packer;
|
| · |
all
of its Health Valley®
baked goods and cereal products from one co-packer, which is under
contract;
|
| · |
all
of its cooking oils from one co-packer;
|
| · |
principally
all of its Garden of Eatin®
and Little Bear Organic Foods®
tortilla chips from three co-packers, one of which is under contract;
|
| · |
a
portion of its requirements for Terra’s®
Yukon Gold, Red Bliss™,
Terra Blues™
and Potpourri™
potato chips and Frites™
line from one co-packer, which is under contract;
|
| · |
the
requirements for its canned soups from four co-packers, which are
under
contract;
|
| · |
all
of its Earth’s Best®
baby food products from seven co-packers, which are under contract;
|
| · |
a
portion of its Ethnic Gourmet®
products from one co-packer, which is under contract; and
|
| · |
all
of its Zia®
natural skincare products from four co-packers, which are under contract
or other arrangements.
|
The
loss
of one or more co-packers, or Hain’s failure to retain co-packers for newly
acquired products or brands, could delay or postpone production of Hain’s
products, which could have a material adverse effect on Hain’s business, results
of operations and financial condition until such time as an alternate source
could be secured, which may be on less favorable terms.
Hain’s
Tea Ingredients Are Subject to Import Risk
Hain’s
tea brand purchases its ingredients from numerous foreign and domestic
manufacturers, importers and growers, with the majority of those purchases
occurring outside of the United States. Hain maintains long-term relationships
with most of its suppliers. Purchase arrangements with ingredient suppliers
are
generally made annually and in U.S. currency. Purchases are made through
purchase orders or contracts, and price, delivery terms and product
specifications vary.
Hain’s
botanical purchasers visit major suppliers around the world annually to procure
ingredients and to assure quality by observing production methods and providing
product specifications. Many ingredients are presently
-3-
grown
in
countries where labor-intensive cultivation is possible, and where Hain often
must educate the growers about product standards. Hain performs laboratory
analysis on incoming ingredient shipments for the purpose of assuring that
they
meet Hain’s quality standards and those of the Food and Drug Administration, or
the “FDA,”
and
the California Organic Foods Act of 1990.
Hain’s
ability to ensure a continuing supply of ingredients at competitive prices
depends on many factors beyond Hain’s control, such as foreign political
situations, embargoes, changes in national and world economic conditions,
currency fluctuations, forecasting adequate need of seasonal raw material
ingredients and unfavorable climatic conditions. Hain takes steps and will
continue to take steps intended to lessen the risk of an interruption of
botanical supplies, including identification of alternative sources and
maintenance of appropriate inventory levels. Hain has, in the past, maintained
sufficient supplies for its ongoing operations.
Hain’s
failure to maintain relationships with its existing suppliers or find new
suppliers, observe production standards for its foreign procured products or
continue its supply of botanicals from foreign sources could harm Hain’s
business.
Hain’s
Future Results of Operations May be Adversely Affected by Escalating Fuel Costs
Many
aspects of Hain’s business have been, and continue to be, directly affected by
the continuously rising cost of fuel. Increased fuel costs have translated
into
increased costs for the products and services Hain receives from its third
party
providers including, but not limited to, increased production and distribution
costs for Hain’s products. As the cost of doing business increases, Hain may not
be able to pass these higher costs on to its customers and, therefore, any
such
increase may adversely affect Hain’s earnings.
Hain
Is Subject to Risks Associated with Its International Sales and Operations,
Including Foreign Currency Risks
Operating
in international markets involves exposure to movements in currency exchange
rates, which are volatile at times. The economic impact of currency exchange
rate movements is complex because such changes are often linked to variability
in real growth, inflation, interest rates, governmental actions and other
factors. Consequently, isolating the effect of changes in currency does not
incorporate these other important economic factors. These changes, if material,
could cause adjustments to Hain’s financing and operating strategies. During
fiscal 2005, approximately 21.1% of Hain’s net sales were generated outside the
United States, while such sales outside the United States were 20.3% of net
sales in 2004 and 17.3% in 2003.
Hain
expects sales from non-core U.S. markets to possibly represent an increasing
portion of its total net sales in the future. Hain’s non-U.S. sales and
operations are subject to risks inherent in conducting business abroad, many
of
which are outside Hain’s control, including:
| · |
periodic
economic downturns and unstable political environments;
|
| · |
price
and currency exchange controls;
|
| · |
fluctuations
in the relative values of currencies;
|
| · |
unexpected
changes in trading policies, regulatory requirements, tariffs and
other
barriers;
|
| · |
compliance
with applicable foreign laws; and
|
| · |
difficulties
in managing a global enterprise, including staffing, collecting accounts
receivable and managing distributors.
|
Hain’s
Inability to Use Its Trademarks Could Have a Material Adverse Effect on Hain’s
Business
Hain
believes that brand awareness is a significant component in a consumer’s
decision to purchase one product over another in the highly competitive food
and
beverage industry. Although Hain endeavors to protect its trademarks and trade
names, there can be no assurance that these efforts will be successful, or
that
third parties will not challenge Hain’s right to use one or more of its
trademarks or trade names. Hain’s failure to continue to sell its products under
its established brand names could have a material adverse effect on Hain’s
business, results of
-4-
operations
and financial condition. Hain believes that its trademarks and trade names
are
significant to the marketing and sale of its products and that the inability
to
utilize certain of these names could have a material adverse effect on Hain’s
business, results of operations and financial condition.
Hain’s
Products Must Comply with Government Regulation
The
United States Department of Agriculture, or the “USDA,”
has
adopted regulations with respect to a national organic labeling and
certification program which became effective February 20, 2001, and fully
implemented on October 21, 2002. Hain currently manufactures approximately
650
organic products which are covered by these regulations. Future developments
in
the regulation of labeling of organic foods could require Hain to further modify
the labeling of its products, which could affect the sales of its products
and
thus harm its business.
In
addition, on January 18, 2001, the FDA proposed new policy guidelines regarding
the labeling of genetically engineered foods. The FDA is currently considering
the comments it received before issuing final guidance. These guidelines, if
adopted, could require Hain to modify the labeling of its products, which could
affect the sales of its products and thus harm its business.
The
FDA
published the final rule amending the Nutritional Labeling regulations to
require declaration of “Trans Fatty Acids” in the nutritional label of
conventional foods and dietary supplements on July 11, 2003. The final rule
will
be effective on January 1, 2006. Additionally, an allergen labeling law was
passed and signed on August 3, 2004. This law requires certain allergens to
be
clearly labeled by January 1, 2006. Hain is in the process of revising its
labels to comply with the final rules. Additionally, Canada has adopted new
food
labeling regulations that must be implemented by December 12, 2005, which
require a Nutritional Facts panel to be on most food packages. Hain’s Yves
products will be subject to these regulations, as will all Hain’s other products
sold into Canada.
Furthermore,
new government laws and regulations may be introduced in the future that could
result in additional compliance costs, seizures, confiscations, recalls or
monetary fines, any of which could prevent or inhibit the development,
distribution and sale of Hain’s products. If Hain fails to comply with
applicable laws and regulations, it may be subject to civil remedies, including
fines, injunctions, recalls or seizures, as well as potential criminal
sanctions, which could have a material adverse effect on Hain’s business,
results of operations and financial condition.
Product
Recalls Could Have a Material Adverse Effect on Hain’s Business
Manufacturers
and distributors of products in Hain’s industry are sometimes subject to the
recall of their products for a variety of reasons, including for product
defects, such as ingredient contamination, packaging safety and inadequate
labeling disclosure. If any of Hain’s products are recalled due to a product
defect or for any other reason, Hain could be required to incur the expense
of
the recall or the expense of any resulting legal proceeding. Additionally,
if
one of Hain’s significant brands were subject to recall, the image of that brand
and of Hain could be harmed, which could have a material adverse effect on
Hain’s business.
Product
Liability Suits, If Brought, Could Have a Material Adverse Effect on Hain’s
Business
If
a
product liability claim exceeding Hain’s insurance coverage were to be
successfully asserted against Hain, it could harm Hain’s business. Hain cannot
assure you that such coverage will be sufficient to insure against claims which
may be brought against it, or that Hain will be able to maintain such insurance
or obtain additional insurance covering existing or new products. As a marketer
of food products, Hain is subject to the risk of claims for product liability.
Hain maintains product liability insurance and generally requires that its
co-packers maintain product liability insurance with Hain as a co-insured.
Hain
Relies on Independent Certification for a Number of Its Natural and Specialty
Food Products
Hain
relies on independent certification, such as certifications of Hain’s products
as “organic” or “kosher,” to differentiate its products from others. The loss of
any independent certifications could adversely affect Hain’s market position as
a natural and specialty food company, which could harm Hain’s business.
Hain
must
comply with the requirements of independent organizations or certification
authorities in order to label its products as certified. For example, Hain
can
lose its “organic” certification if a manufacturing plant becomes
-5-
contaminated
with non-organic materials, or if not properly cleaned after a production run.
In addition, all raw materials must be certified organic. Similarly, Hain can
lose its “kosher” certification if a manufacturing plant and raw materials do
not meet the requirements of the appropriate kosher supervision organization.
Due
to the Seasonality of Many of Hain’s Products, Including Hain’s Tea Products,
and Other Factors, Hain’s Operating Results Are Subject to Quarterly
Fluctuations
Hain’s
tea brand manufactures and markets hot tea products and, as a result, its
quarterly results of operations reflect seasonal trends resulting from increased
demand for its hot tea products in the cooler months of the year. In addition,
some of Hain’s other products (e.g., baking and cereal products and soups) also
show stronger sales in the cooler months while Hain’s snack food product lines
are stronger in the warmer months. Quarterly fluctuations in Hain’s sales volume
and operating results are due to a number of factors relating to Hain’s
business, including the timing of trade promotions, advertising and consumer
promotions and other factors, such as seasonality, inclement weather and
unanticipated increases in labor, commodity, energy, insurance or other
operating costs. The impact on sales volume and operating results due to the
timing and extent of these factors can significantly impact Hain’s business. For
these reasons, you should not rely on Hain’s quarterly operating results as
indications of future performance.
Hain’s
Growth is Dependent on Its Ability to Generate Product
Improvements
Hain’s
growth depends in large part on its ability to generate and implement
improvements to its existing products and to introduce new products to
consumers. The innovation and product improvements are affected by the level
of
funding that can be made available, the technical capability of Hain’s research
and development department in developing and testing product prototypes, and
the
success of management in rolling out the resulting improvements in a timely
manner. If Hain is unsuccessful in implementing product improvements that
satisfy the demands of consumers, Hain’s business could be harmed.
The
Profitability of Hain’s Operations is Dependent on Its Ability to Manage Its
Inventory
Hain’s
profit margins depend on its ability to manage its inventory efficiently. As
part of Hain’s effort to manage its inventory more efficiently, Hain carried out
a stock keeping unit (“SKU”)
rationalization program which resulted in the discontinuation of numerous
lower-margin or low-turnover SKUs. However, a number of factors, such as changes
in customers’ inventory levels, access to shelf space and changes in consumer
preferences, may lengthen the number of days Hain carries certain inventories,
hence impeding its effort to manage its inventory efficiently.
Hain’s
Officers and Directors May Be Able to Control Hain’s Actions
Hain’s
officers and directors beneficially owned approximately 11.6% of Hain’s common
stock as of September 1, 2005. In addition, two of these directors currently
serve as a designee and a jointly appointed designee of the selling stockholder,
which owned approximately 16.4% of Hain’s common stock as of September 1, 2005.
Accordingly, Hain’s officers and directors may be in a position to influence the
election of Hain’s directors and otherwise influence stockholder action.
Hain’s
Ability to Issue Preferred Stock May Deter Takeover Attempts
Hain’s
board of directors is empowered to issue, without stockholder approval,
preferred stock with dividends, liquidation, conversion, voting or other rights
which could decrease the amount of earnings and assets available for
distribution to holders of Hain’s common stock and adversely affect the relative
voting power or other rights of the holders of Hain’s common stock. In the event
of issuance, the preferred stock could be used as a method of discouraging,
delaying or preventing a change in control. Hain’s certificate of incorporation
authorizes the issuance of up to 5,000,000 shares of “blank check” preferred
stock with such designations, rights and preferences as may be determined from
time to time by Hain’s board of directors. Although Hain has no present
intention to issue any shares of its preferred stock, Hain may do so in the
future under appropriate circumstances.
-6-
Future
Sales or the Perception of Future Sales of Hain’s Common Stock Could Adversely
Affect Hain’s Stock Price.
The
market price of Hain’s common stock could decline as a result of sales of
substantial amounts of Hain’s common stock in the public market, or the
perception that those sales could occur. These sales or the possibility that
they may occur also could make it more difficult for Hain to raise funds in
any
equity offering in the future at a time and price that Hain deems
appropriate.
-7-
USE
OF PROCEEDS
We
will
not receive any of the proceeds from the sale of shares by the selling
stockholder. All of the proceeds from the sale of shares of common stock by
the
selling stockholder will be received by the selling stockholder.
-8-
SELLING
STOCKHOLDER
The
following table shows information regarding ownership of the shares of common
stock held by the selling stockholder,
HJH One,
L.L.C., which is an affiliate of H.J. Heinz Company. HJH One, L.L.C. acquired
its shares of our common stock from another affiliate of Heinz. In the
discussion below we refer to Heinz and its affiliates collectively as
“Heinz.”
|
Name
|
Number
of Shares of Common Stock Beneficially Owned
|
Percent
of Class at September 1, 2005
|
Number
of Shares of Common Stock Registered Hereby
|
Number
of Shares of Common Stock to Be Owned After Completion of this
Offering*
|
Percent
of Class*
|
|
HJH
One, L.L.C.
|
6,090,351
|
16.4%
|
6,090,351
|
0
|
0%
|
————————
*Assuming
the
sale
of all shares registered pursuant to this shelf registration
statement.
Heinz’s
acquisition of our common stock
In
September 1999 we entered into an agreement with Heinz relating to the global
production and marketing of natural and organic foods and soy-based beverages.
As part of this transaction, Heinz acquired 2,837,343 shares of our common
stock
for an aggregate purchase price of $82.4 million. In addition, in a separate
transaction announced in September 1999, we purchased the Earth’s Best
trademarks from Heinz for $4.6 million in cash and 670,234 shares of common
stock. When we merged with Celestial Seasonings in June 2000, we issued an
additional 2,582,774 shares of common stock to Heinz for an aggregate purchase
price of $79.7 million, pursuant to Heinz’s rights under the investor’s
agreement described below.
Agreements
between Heinz and us
We
entered into an investor’s agreement and a registration rights agreement with
Heinz in connection with Heinz’s September 1999 investment.
The
investor’s agreement provides for the appointment to our Board of Directors of
one member nominated by Heinz and one member jointly nominated by Heinz and
us;
this right will terminate if at any time Heinz holds less than 50% of the shares
of our common stock that it acquired in September 1999. Currently the board
member nominated by Heinz is Mr. Mitchell A. Ring, who is Senior Vice
President—Business Development of H.J. Heinz Company. The jointly nominated
director is Mr. D. Edward I. Smyth, who is Senior Vice President—Corporate and
Government Affairs and Chief Administrative Officer of H.J. Heinz Company.
In
addition, the investor’s agreement requires Heinz to vote its shares in favor of
nominees for directors recommended by us for election in proxy solicitation
materials disseminated by us.
Pursuant
to the registration rights agreement, we agreed to file a registration statement
under the Securities Act with respect to a resale of the shares owned by Heinz
and to use our best efforts to cause the registration statement to become
effective. We filed this registration statement pursuant to Heinz’s request
under the registration rights agreement. We and Heinz have each agreed to
indemnify the other for certain liabilities, including liabilities under the
Securities Act, and will contribute to payments that the other may be required
to make in respect of those liabilities.
Heinz
has
agreed to reimburse us for up to $750,000 of registration expenses associated
with offerings under this registration statement.
Transactions
between Heinz and us in the last three years
In
May
2004, we acquired the assets of our Rosetto and Ethnic Gourmet businesses from
Heinz for approximately $24 million (subject to adjustment) and the assumption
of certain liabilities.
In
fiscal
2005 we paid Heinz approximately $2,292,437 in purchases, royalties and profit
sharing fees, and they paid us approximately $2,419,894 in purchases. In fiscal
2004 we paid Heinz approximately $695,596 in purchases,
-9-
royalties
and profit sharing fees, and they paid us approximately $570,956 in purchases.
In fiscal 2003 we paid Heinz approximately $1,531,450 in purchases, royalties
and profit sharing fees, and they paid us approximately $600,000 in royalties.
In fiscal 2002, we paid to Heinz approximately $3,456,000 in purchases,
royalties and profit sharing fees.
-10-
DESCRIPTION
OF CAPITAL STOCK
General
Our
authorized capital stock consists of 100,000,000 shares of common stock, $.01
par value per share, and 5,000,000 shares of preferred stock, $.01 par value
per
share.
The
following description is qualified in all respects by reference to our
certificate of incorporation and the bylaws.
Common
Stock
Each
share of common stock entitles the holder thereof to one vote on all matters
submitted to a vote of the stockholders. Since the holders of common stock
do
not have cumulative voting rights, holders of more than 50% of the outstanding
shares can elect all of our directors then being elected and holders of the
remaining shares by themselves cannot elect any directors. The holders of common
stock do not have preemptive rights or rights to convert their common stock
into
other securities. Holders of common stock are entitled to receive ratably such
dividends as may be declared by our board of directors out of funds legally
available therefor. In the event of our liquidation, dissolution or winding
up,
holders of the common stock have the right to a ratable portion of the assets
remaining after payment of liabilities. All outstanding shares of common stock
are fully paid and nonassessable.
Preferred
Stock
We
are
authorized by our certificate of incorporation to issue a maximum of 5,000,000
shares of preferred stock, in one or more series and containing such rights,
privileges and limitations including voting rights, dividend rates, conversion
privileges, redemption rights and terms, redemption prices and liquidation
preferences, as our board of directors may, from time to time,
determine.
The
issuance of shares of preferred stock pursuant to our board of
directors’
authority described above could decrease the amount of earnings and assets
available for distribution to holders of common stock, and otherwise adversely
affect the rights and powers, including voting rights, of such holders and
may
have the effect of delaying or preventing us from being subject to a change
in
control. See “Risk Factors — Hain’s Ability To Issue Preferred Stock May Deter
Takeover Attempts.” We are not required by the Delaware General Corporation Law,
or the “DGCL,”
to
seek stockholder approval prior to any issuance of authorized but unissued
stock
and our board of directors does not currently intend to seek stockholder
approval prior to any issuance of authorized but unissued stock, unless
otherwise required by law.
Certificate
of Incorporation and Bylaws
Pursuant
to the DGCL, the power to adopt, amend and repeal bylaws is conferred solely
upon the stockholders unless the corporation’s
certificate of incorporation also confers such power upon the board of
directors. Under our certificate of incorporation, our board of directors is
granted the power to amend our bylaws. Our bylaws provide that each director
has
one vote on each matter for which directors are entitled to vote. Our
certificate of incorporation and/or bylaws also provide that (1) from time
to time, by resolution, our board of directors has the power to change the
number of directors, (2) the directors will hold office until the next
annual meeting of stockholders and until their respective successors are elected
and qualified, and (3) special meetings of stockholders may only be called
by our board of directors or certain of our officers. These provisions, in
addition to the existence of authorized but unissued capital stock, may have
the
effect, either alone or in combination with each other, of making more
difficult, or discouraging unsolicited third parties from, an acquisition of
us
which has been deemed undesirable by our board of directors. Our board of
directors currently has twelve members.
Section
203 of the Delaware Law
Section
203 of the DGCL prohibits a publicly held Delaware corporation from engaging
in
a “business
combination” with an “interested stockholder” for a period of three years after
the date of the transaction in which the person became an interested
stockholder, unless (1) prior to the date of the business combination, the
transaction is approved by the board of directors of the corporation;
(2) upon consummation of the transaction which resulted in the stockholder
becoming an interested stockholder, the interested stockholder owned at least
85% of the voting stock outstanding at the time the transaction commenced,
or
(3) on or after such date the business combination is
-11-
approved
by the board of directors and by the affirmative vote of at least 66-2/3% of
the
outstanding voting stock that is not owned by the interested stockholder. A
“business combination” includes mergers, asset sales and other transactions
resulting in a financial benefit to the stockholder. An “interested stockholder”
is a person, who, together with affiliates and associates, owns (or within
three
years, did own) 15% or more of the corporation’s voting stock. This provision of
law could discourage, prevent or delay a change in management or stockholder
control of us, which could have the effect of discouraging bids and thereby
prevent stockholders from receiving the maximum value for their shares, or
a
premium for their shares in a hostile takeover situation.
Transfer
Agent and Registrar
The
Transfer Agent and Registrar for the common stock is Continental Stock Transfer
& Trust Company, New York, New York.
-12-
PLAN
OF DISTRIBUTION
All
of
the shares offered hereby may be sold from time to time by the selling
stockholder or by its registered assigns. The selling stockholder may sell
all
or part of the shares covered by this prospectus, on terms determined at the
time such shares are offered for sale, to or through underwriters, directly
to
other purchasers or broker-dealers, or through dealers or other persons acting
as agents, or through a combination of such methods. The prospectus supplement
will set forth the terms of the offering of the shares registered hereby,
including (a) the name or names of any underwriters, dealers or agents and
the
amounts of securities underwritten or purchased by each of them and (b) the
public offering price of the shares and the proceeds to the selling stockholder
and any discounts, commissions or concessions allowed or reallowed or paid
to
dealers.
If
underwriters are used in the sale of the shares, the shares will be acquired
by
the underwriters for their own account and may be resold from time to time
in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. Generally,
the underwriters’ obligations to purchase the shares will be subject to certain
conditions precedent. The underwriters will be obligated to purchase all of
the
shares offered if they purchase any of the shares offered.
The
shares offered hereby may also be sold by one or more of the following methods:
(a) a block trade in which a broker or dealer so engaged will attempt to
sell the shares as agent but may purchase and resell a portion of the block
as
principal to facilitate the transaction; (b) purchases by a broker or
dealer as principal and resale by such broker or dealer for its account pursuant
to this prospectus; (c) ordinary brokerage transactions and transactions in
which the broker solicits purchasers; (d) privately negotiated
transactions; and (e) face-to-face transactions between sellers and
purchasers without a broker-dealer.
The
selling stockholder may be deemed to be a statutory underwriter under the
Securities Act. Also any broker-dealers who act in connection with the sale
of
the shares hereunder may be deemed to be “underwriters” within the meaning of
the Securities Act, and any commissions received by them and profit on any
resale of the shares as principal may be deemed to be underwriting discounts
and
commissions
under the Securities Act.
In
effecting sales, brokers or dealers engaged by the selling stockholder may
arrange for other brokers or dealers to participate. Such brokers or dealers
may
receive commissions or discounts from the selling stockholder in amounts to
be
negotiated by the selling stockholder. The selling stockholder may enter into
hedging transactions with broker-dealers and the broker-dealers may engage
in
short sales of the common stock in the course of hedging the positions they
assume with the selling stockholder (including in connection with the
distribution of the common stock by such broker-dealers). The selling
stockholder may also engage in short sales of the common stock and may enter
into option or other transactions with broker-dealers that involve the delivery
of the common stock to the broker-dealers, who may then resell or otherwise
transfer such common stock. Such broker-dealers and any other participating
broker-dealers may, in connection with such sales, be deemed to be underwriters
within the meaning of the Securities Act. Any discounts or commissions received
by any such broker-dealers may be deemed to be underwriting discounts and
commissions under the Securities Act.
The
selling stockholder may also sell shares in accordance with Rule 144 under
the
Securities Act, if Rule 144 is then available.
In
order
to comply with the securities laws of certain states, if applicable, the shares
will be sold in such jurisdictions only through registered or licensed
broker-dealers.
The
selling stockholder has agreed to reimburse us for up to $750,000 of
registration expenses associated with offerings under this registration
statement. An estimate of the expenses of any offering under this registration
statement will be included in the applicable prospectus supplement.
-13-
LEGAL
MATTERS
Certain
legal matters with respect to the validity of the common stock offered hereby
will be passed upon for us by Cahill Gordon & Reindel LLP,
New
York, New York. Cahill Gordon & Reindel LLP
acts as
our regular outside counsel. Roger Meltzer, a partner of Cahill Gordon &
Reindel LLP,
is also
a member of our board of directors. Mr. Meltzer receives compensation as a
board
member.
EXPERTS
The
consolidated financial statements of Hain appearing
in Amendment No. 1 to its Annual Report on Form 10-K for the year ended June
30,
2005 (including the schedule appearing therein), and Hain’s management’s
assessment of the effectiveness of internal control over financial reporting
as
of June 30, 2005 included therein, have been audited by Ernst & Young LLP,
independent registered public accounting firm, as set forth in their reports
thereon, included therein, and incorporated herein by reference. Such
consolidated financial statements and management’s assessment are incorporated
herein by reference in reliance upon such reports given on the authority of
such
firm as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We
are a
Delaware corporation. Our principal executive offices are located at 58 South
Service Road, Melville, NY 11747, and our telephone number is
(631) 730-2200.
We
file
annual, quarterly and current reports, proxy statements and other information
with the SEC. You may read and copy any reports, statements or other information
that we
file
at the SEC’s public reference room at 100 F Street, N.E., Washington, D.C.
20549. Please call the SEC at 1-800-SEC-0330 for further information on the
public reference room. Our public filings are also available to the public
from
commercial document retrieval services, at the Internet Web site maintained
by
the SEC at www.sec.gov, and on our web site, www.hain-celestial.com. The
information on our web site is not part of this prospectus.
Our
common stock is quoted on Nasdaq under the symbol “HAIN.” You may inspect
reports and other information concerning us at the offices of the National
Association of Securities Dealers, Inc., 1735 K Street, N.W., Washington, D.C.
20016.
This
prospectus is part of a registration statement on Form S-3 that we filed with
the SEC to register the shares that the selling stockholder will sell in this
offering. This prospectus does not include all of the information contained
in
the registration statement because certain parts of the registration statement
are omitted as provided by the rules and regulations of the SEC. For further
information about us and the securities offered in this prospectus, you should
review the registration statement and the information incorporated by reference
therein. You can inspect or copy the registration statement at any of the
addresses listed above.
The
SEC
allows us to “incorporate by reference” information into this prospectus, which
means that we can disclose important information to you by referring you to
those documents filed separately with the SEC. The information incorporated
by
reference is considered part of this prospectus, except for any information
superseded by information contained directly in this prospectus. Information
that we file later with the SEC will automatically update and supersede this
information. This prospectus incorporates by reference the documents described
below that we previously filed with the SEC. These documents contain important
information about us and our financial condition.
The
following documents listed below that we have previously filed with the SEC
are
incorporated by reference:
| · |
Amendment
No. 1 to our annual report on Form 10-K filed with the SEC for the
fiscal year ended June 30, 2005;
|
| · |
our
quarterly report on Form 10-Q filed with the SEC for the fiscal quarter
ended September 30, 2005;
|
| · |
our
current reports on Form 8-K filed with the SEC on August 26, 2005
and
November 4, 2005;
|
-14-
| · |
our
revised definitive proxy statement on Schedule 14A filed with the
SEC on
October 31, 2005; and
|
| · |
the
description of our common stock contained in our registration statement
on
Form 8-A/A dated November 12, 1993 and any amendment or report filed
for the purpose of updating such description.
|
All
documents that we file pursuant to Sections 13(a), 13(c), 14 or 15(d) under
the
Exchange Act from the date of this prospectus until the completion of the resale
by the selling stockholder, shall also be deemed to be incorporated by reference
in this prospectus,
unless
provided otherwise in the relevant document. These additional documents include
periodic reports, such as Annual Reports on Form 10-K, Quarterly Reports on
Form 10-Q and Current Reports on Form 8-K, as well as proxy
statements. Upon request, we will provide without charge to each person to
whom
a prospectus is delivered, including any beneficial owner, a copy of any or
all
of the information that has been incorporated by reference in this prospectus.
If
you
would like to obtain this information from us, please direct your request,
either in writing or by telephone, to:
The
Hain
Celestial Group, Inc.
Attention:
Investor Relations
58
South
Service Road
Melville,
New York 11747
(631)
730-2200
The
Hain
Celestial Group, Inc., the Hain logos and all other Hain product and service
names are registered trademarks or trademarks of The Hain Celestial Group,
Inc.
in the USA and in other select countries. “®”
and
“™” indicate USA registration and USA trademark, respectively. Other third party
logos and product/trade names are registered trademarks or trade names of their
respective companies.
-15-
|
The
Hain Celestial Group, Inc.
6,090,351
Shares of Common Stock
_______________
PROSPECTUS
________________
,
2005
|
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. OTHER
EXPENSES OF ISSUANCE AND DISTRIBUTION.
The
following table sets forth the costs and expenses, other than discounts and
commissions, if any, incurred in connection with the sale of common stock being
registered (all amounts are estimated except the Securities and Exchange
Commission registration fee).
In
connection with the sale of the common stock being registered hereby, the
selling stockholder will reimburse us for up to $750,000 of registration
expenses associated with offerings under this registration
statement.
|
Securities
and Exchange Commission Registration Fee
|
$
|
14,484
|
|
|
Legal
Fees and Expenses
|
200,000
|
||
|
Accounting
Fees and Expenses
|
75,000
|
||
|
Miscellaneous
|
25,516
|
||
|
Total
|
$
|
315,000
|
Item
15. INDEMNIFICATION
OF DIRECTORS AND OFFICERS.
Delaware
Law. Section
145 of the Delaware General Corporation Law, or the “DGCL,”
provides that a corporation may indemnify a director or officer under certain
circumstances.
Section
145(a) of the DGCL provides that a corporation may indemnify a director,
officer or other employee or individual made, or threatened to be made, a party
to any threatened, pending or completed action other than a derivative action,
whether civil or criminal, against expenses (including attorneys’ fees),
judgments, fines, amounts paid in settlement actually and reasonably incurred
as
a result of such action, if such director, officer or other employee or
individual acted in good faith for a purpose which such person reasonably
believed to be in, or not opposed to, the best interests of the corporation
and,
in criminal actions or proceedings, in addition, has no reasonable cause to
believe that such person’s conduct was unlawful.
Section
145(b) of the DGCL provides that a corporation may indemnify a director,
officer or other employee or individual, made or threatened to be made a party
in a derivative action, against expenses (including attorneys fees) actually
and
reasonably incurred by such person in connection with the defense or settlement
of such action, if such person acted in good faith and in a manner such person
reasonably believed to be in, or not opposed to, the best interests of the
corporation, except that no indemnification will be made in respect of any
claim
as to which such person shall have been adjudged liable to the corporation,
unless and only to the extent that the Court of Chancery or the court in which
the action was brought determines, upon application, that, in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses as the Court of Chancery or such other court deems
proper
Section
145(c) of the DGCL provides that indemnification by a corporation is
mandatory in any case in which a present or former director or officer has
been
successful, whether on the merits or otherwise, in defending an action. In
the
event that the director or officer has not been successful or the action is
settled, indemnification must be authorized by the appropriate corporate action
as set forth in Section 145(d).
Section
145(d) of the DGCL specifies the manner in which payment of indemnification
under Section 145(a) of the DGCL or indemnification permitted under Section
145(b) of the DGCL may be authorized by the corporation.
Section
145(g) of the DGCL authorizes the purchase and maintenance of insurance to
indemnify directors, officers employees or agents in instances in which they
may
be indemnified by a corporation under such section.
Hain’s
Certificate of Incorporation and Bylaws. Article
Tenth of the Amended and Restated Certificate of Incorporation and Article
VI of
the Amended and Restated Bylaws of Hain permit Hain to indemnify its directors,
II-1
officers
and corporate personnel to the full extent permitted by Section 145 of the
DGCL,
as the same may be supplemented or amended from time to time.
Insurance.
Hain
has also purchased liability insurance policies covering Hain directors and
officers.
Item
16. EXHIBITS.
The
following exhibits are filed as part of this Registration
Statement:
|
Exhibit No.
|
Description
|
|
1(a)
|
Form
of underwriting agreement
|
|
3.1
|
Amended
and Restated Certificate of Incorporation of Hain (incorporated by
reference to Exhibit 3.1 of Amendment No. 1 to Hain’s
Registration Statement on Form S-4 (Commission File No. 333-33830)
filed with the Commission on April 24, 2000).
|
|
3.2
|
Amended
and Restated Bylaws of Hain (incorporated by reference to Exhibit 3.2
of Amendment No. 1 to Hain’s Registration Statement on Form S-4
(Commission File No. 333-33830) filed with the Commission on April
24, 2000).
|
|
4
|
Specimen
of Hain common stock certificate (incorporated by reference to
Exhibit 4.1 of Amendment No. 1 to Hain’s Registration Statement
on Form S-4 (Commission File No. 333-33830) filed with the Commission
on April 24, 2000).
|
|
5(b)
|
Opinion
of Cahill Gordon & Reindel LLP
regarding the legality of the securities being registered.
|
|
23.1(b)
|
Consent
of Ernst & Young LLP, Independent Registered Public Accounting
Firm.
|
|
23.2
|
Consent
of Cahill Gordon & Reindel LLP
(included in Exhibit 5).
|
|
24
|
Powers
of Attorney (included on the signature pages to this Registration
Statement).
|
_______________________
(a) to
be
filed by amendment or in a Form 8-K incorporated by reference
(b) filed
herewith
Item
17. UNDERTAKINGS.
The
undersigned registrant hereby undertakes:
(1)
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 Securities Act of
1933;
(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 set forth in the registration statement. Notwithstanding
the
foregoing, any increase or de-crease 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 filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective
registration statement.
(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;
II-2
provided,
however, that the undertakings set forth in paragraphs (i), (ii) and (iii)
above
do not apply if the information required
to be included in a post-effective amendment by those paragraphs is contained
in
reports filed with or furnished to the Commission by the registrant pursuant
to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement, or is contained in
a
form of prospectus filed pursuant to Rule 424(b) that is part of the
registration statement.
(2)
that,
for the purpose of determining any liability under the Securities Act of 1933,
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.
(3)
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.
(4)
that,
for the purpose of determining liability under the Securities Act of 1933 to
any
purchaser:
(A) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed
to
be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7)
as
part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose
of
providing the information required by Section 10(a) of the Securities Act of
1933 shall be deemed to be part of and included in the registration statement
as
of the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an underwriter,
such
date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that time shall
be
deemed to be the initial bona
fide
offering
thereof. Provided,
however,
that no
statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of
the
registration statement will, as to a purchaser with a time of contract of sale
prior to such effective date, supersede or modify any statement that was made
in
the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective
date.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933
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 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.
II-3
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Melville, state of New York, on December
2, 2005.
THE
HAIN
CELESTIAL GROUP, INC.
By: /s/
Ira J. Lamel
Name: Ira
J.
Lamel
Title: Executive
Vice President, Chief Financial
Officer and Treasurer
Officer and Treasurer
II-4
POWER
OF ATTORNEY
Each
person whose signature appears below in so signing also makes, constitutes
and
appoints Irwin D.
Simon
and Ira J. Lamel, and each of them acting alone, his true and lawful
attorney-in-fact, with full power of substitution, for him in any and all
amendments and post-effective amendments to this registration statement, and
any
registration statement for the same offering covered by this registration
statement that is to be effective upon filing pursuant to Rule 462(b) under
the
Securities Act of 1933, and all post-effective amendments thereto together
with
exhibits to any such registration statements or amendments and other documents
in connection therewith, and hereby ratifies and confirms all that said
attorney-in-fact or said attorney-in-fact’s substitute or substitutes may do or
cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration
Statement has been signed on December 2, 2005 by the following persons in the
capacities indicated.
|
Name
|
Title
|
|
/s/
Irwin D. Simon
Irwin
D. Simon
|
Chairman
of the Board, President and Chief Executive Officer
(Principal
Executive Officer)
|
|
/s/
Ira J. Lamel
Ira
J. Lamel
|
Executive
Vice President, Chief Financial Officer and Treasurer
(Principal
Financial and Accounting Officer)
|
|
/s/
Barry J. Alperin
Barry
J. Alperin
|
Director
|
|
/s/
Beth L. Bronner
Beth
L. Bronner
|
Director
|
|
/s/
Jack Futterman
Jack
Futterman
|
Director
|
|
/s/
Daniel R. Glickman
Daniel
R. Glickman
|
Director
|
|
/s/
Marina Hahn
Marina
Hahn
|
Director
|
|
/s/
Andrew R. Heyer
Andrew
R. Heyer
|
Director
|
|
/s/
Roger Meltzer
Roger
Meltzer
|
Director
|
|
/s/
Mitchell A. Ring
Mitchell
A. Ring
|
Director
|
|
/s/
Lewis D. Schiliro
Lewis
D. Schiliro
|
Director
|
|
/s/
D. Edward I. Smyth
D.
Edward I. Smyth
|
Director
|
|
/s/
Larry S. Zilavy
Larry
S. Zilavy
|
Director
|
II-5
INDEX
TO EXHIBITS
|
Exhibit No.
|
Description
|
|
1(a)
|
Form
of underwriting agreement.
|
|
3.1
|
Amended
and Restated Certificate of Incorporation of Hain (incorporated by
reference to Exhibit 3.1 of Amendment No. 1 to Hain’s
Registration Statement on Form S-4 (Commission File No. 333-33830)
filed with the Commission on April 24, 2000).
|
|
3.2
|
Amended
and Restated Bylaws of Hain (incorporated by reference to Exhibit 3.2
of Amendment No. 1 to Hain’s Registration Statement on Form S-4
(Commission File No. 333-33830) filed with the Commission on April
24, 2000).
|
|
4
|
Specimen
of Hain common stock certificate (incorporated by reference to
Exhibit 4.1 of Amendment No. 1 to Hain’s Registration Statement
on Form S-4 (Commission File No. 333-33830) filed with the Commission
on April 24, 2000).
|
|
5(b)
|
Opinion
of Cahill Gordon & Reindel LLP
regarding the legality of the securities being registered.
|
|
23.1(b)
|
Consent
of Ernst & Young LLP, Independent Registered Public Accounting
Firm.
|
|
23.2
|
Consent
of Cahill Gordon & Reindel LLP
(included in Exhibit 5).
|
|
24
|
Powers
of Attorney (included on the signature pages to this Registration
Statement).
|
_______________________
(a) to
be
filed by amendment or in a Form 8-K incorporated by reference
(b) filed
herewith
Exhibit 5
Cahill
Gordon & Reindel LLP
80
Pine
Street
New
York,
New York 10005
December
2, 2005
Securities
and Exchange Commission
450
5th
Street, N.W.
Washington,
D.C. 20549
|
Re:
|
The
Hain Celestial Group, Inc.
Registration Statement on Form S-3 |
Ladies
and Gentlemen:
We
have
acted as special counsel to The Hain Celestial Group, Inc. (the “Company”)
in connection with the preparation of the Company’s registration statement on
Form S-3 (the “Registration Statement”) filed with the Securities and Exchange
Commission (the “Commission”) under the Securities Act of 1933, as amended (the
“Securities Act”), in connection with the sale by the selling stockholder listed
therein of up to 6,090,351 shares of common stock of the Company, par value
$.01
per share (the “Shares”).
In
rendering the opinion set forth herein, we have examined originals, photocopies
or conformed copies certified to our satisfaction of all such corporate records,
agreements, instruments and documents of the Company, certificates of public
officials and other certificates and opinions, and we have made such other
investigations, as we have deemed necessary in connection with the opinions
set
forth herein. In our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals
and
the conformity to originals of all documents submitted to us as photocopies
or
conformed copies.
Based
on
the foregoing, and subject to the effectiveness of the Registration Statement
under the Securities Act, we advise you that in our opinion the Shares are
validly issued, fully paid and nonassessable.
We
are
members of the bar of the State of New York, and in rendering this opinion
we
express no opinion as to the laws of any jurisdiction other than the laws of
the
State of New York, the State of Delaware and the Federal laws of the United
States of America.
We
hereby
consent to the use of our firm’s name under the caption “Legal Matters” and to
the filing of a copy of this opinion with the Commission as an exhibit to the
Registration Statement referred to above.
Very
truly yours,
/s/
Cahill Gordon & Reindel llp
Exhibit 23.1
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
consent to the reference to our firm under the caption “Experts”
in the Registration Statement (Form S-3
No. 333- )
and related Prospectus of The Hain Celestial Group, Inc. for the registration
of
6,090,351 shares of its common stock and to the incorporation by reference
therein of our reports dated August 31, 2005, with respect to the consolidated
financial statements and schedule of The Hain Celestial Group, Inc. and
Subsidiaries, The Hain Celestial Group Inc.’s management’s assessment of the
effectiveness of internal control over financial reporting, and the
effectiveness of internal control over financial reporting of The Hain Celestial
Group, Inc. and Subsidiaries included in Amendment No. 1 to its Annual
Report (Form 10-K) for the year ended June 30, 2005, filed with the Securities
and Exchange Commission.
/s/
ERNST
& YOUNG LLP
Melville,
New York
December
1, 2005