UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
————————————
FORM
8-K/A
(Amendment
No. 1)
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of The Securities Exchange Act of
1934
Date
of Report (Date of earliest event reported): December 2,
2005
————————————
THE
HAIN CELESTIAL GROUP, INC.
(Exact
name of registrant as specified in its charter)
————————————
|
Delaware
|
0-22818
|
22-3240619
|
|
(State
or other jurisdiction
of
incorporation)
|
(Commission
File Number)
|
(I.R.S.
Employer Identification No.)
|
58
South Service Road, Melville, NY 11747
(Address
of principal executive offices)
Registrant’s
telephone number, including area code: (631) 730-2200
Not
Applicable
(Former
name or former address, if changed since last report)
————————————
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
[
]
Written communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
[
]
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[
]
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act
(17 CFR 240.14d-2(b))
[
]
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
Act
(17 CFR 240.13e-4(c))
Item
1.01. Entry
into a Material Definitive Agreement.
On
December 19, 2005, The Hain Celestial Group, Inc. (the "Company"), HJH One,
L.L.C. (the "Selling Stockholder"), which is an affiliate of H.J. Heinz Company
(together with its affiliates, “Heinz”), UBS Securities LLC, Banc of America
Securities LLC and J.P. Morgan Securities Inc. entered into an underwriting
agreement (the "Underwriting Agreement") relating to the public offering at
$20.00 per share of 5,295,957 shares of the Company's common stock, par value
$.01 per share (the "Common Stock") by the Selling Stockholder. The Selling
Stockholder has also agreed to sell up to 794,394 shares of the Company's Common
Stock if the underwriters exercise in full their over-allotment option. The
shares offered by the Selling Stockholder are being sold pursuant to the
Company's shelf registration statement on Form S-3 (No. 333-130090), as amended
(the "Registration Statement"), which was previously declared effective by
the
Securities and Exchange Commission ("SEC"), the base prospectus included therein
and the prospectus supplement dated December 20, 2005 and filed with the SEC.
The Underwriting Agreement is included as Exhibit 1.1 hereto and is hereby
incorporated by reference herein and into the Registration Statement. The
Company’s press release announcing the pricing of the offering is included as
Exhibit 99.1 hereto and is hereby incorporated by reference herein and into
the
Registration Statement.
Item
9.01 Financial Statements and Exhibits.
(d)
Exhibits.
(1.1) Underwriting
Agreement, dated as of December 19, 2005, by and among The Hain Celestial Group,
Inc., HJH One, L.L.C., UBS Securities LLC, Banc of America Securities LLC and
J.P. Morgan Securities Inc.
(99.1) Press
release of Hain dated December 20, 2005.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant
has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
Date: December
20, 2005
THE
HAIN
CELESTIAL GROUP, INC.
(Registrant)
By: /s/
Ira J. Lamel
Name: Ira
J.
Lamel
Title:
Executive
Vice President and
Chief
Financial Officer
Exhibit
1.1
EXECUTION
COPY
THE
HAIN CELESTIAL GROUP, INC.
5,295,957
Shares
Common
Stock
($.01
par
value per Share)
Underwriting
Agreement
December
19, 2005
Underwriting
Agreement
December
19, 2005
UBS
Securities LLC
Banc
of
America Securities LLC
J.P.
Morgan Securities Inc.
as
Managing Underwriters
c/o
UBS
Securities LLC
299
Park
Avenue
New
York,
New York 10171-0026
Ladies
and Gentlemen:
HJH
One,
L.L.C., a
Delaware limited liability company (the “Selling
Stockholder”),
proposes to sell to the underwriters named in Schedule
A
annexed
hereto (the “Underwriters”),
for
whom you are acting as representatives, an aggregate of 5,295,957 shares
(the
“Firm
Shares”)
of
common stock, $.01 par value per share (the “Common
Stock”),
of
The Hain Celestial Group, Inc., a Delaware corporation (the “Company”).
In
addition, solely for the purpose of covering over-allotments, the Selling
Stockholder proposes to grant to the Underwriters the option to purchase
from
the Selling Stockholder up to an additional 794,394 shares of Common Stock
(the
“Additional
Shares”).
The
Firm Shares and the Additional Shares are hereinafter sometimes collectively
referred to as the “Shares.”
The
Shares are described in the Prospectus which is referred to below.
The
Company has prepared and filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the “Act”),
with
the Securities and Exchange Commission (the “Commission”)
a
registration statement on Form S-3 (File No. 333-130090) under the Act (the
“registration
statement”).
Amendments to such registration statement, if necessary or appropriate, have
been similarly prepared and filed with the Commission in accordance with
the
Act. Such registration statement, as so amended, has become effective under
the
Act.
Except
where the context otherwise requires, “Registration
Statement,”
as
used herein, means the registration statement, as amended at the time of
such
registration statement’s effectiveness for purposes of Section 11 of the Act, as
such section applies to the respective Underwriters (the “Effective
Time”),
including (i) all documents filed as a part thereof or incorporated or deemed
to
be incorporated by reference therein, (ii) any information contained or
incorporated by reference in a prospectus filed with the Commission pursuant
to
Rule 424(b) under the Act, to the extent such information is deemed, pursuant
to
Rule 430B or Rule 430C under the Act, to be part of the registration statement
at the Effective Time, and (iii) any registration statement filed to register
the offer and sale of Shares pursuant to Rule 462(b) under the Act.
The
Company has furnished to you, for use by the Underwriters and by dealers
in
connection with the offering of the Shares, copies of one or more preliminary
prospectus supplements, and the documents incorporated by reference therein,
relating to the Shares. “Pre-
Pricing
Prospectus,”
as
used herein, means each such preliminary prospectus supplement, in the form
so
furnished, including any
basic
prospectus (whether or not in preliminary form) furnished to you by the Company
and attached to or used with such preliminary prospectus supplement.
“Basic
Prospectus,”
as
used herein, means any such basic prospectus and any basic prospectus furnished
to you by the Company and attached to or used with the Prospectus Supplement
(as
defined below).
“Prospectus
Supplement,”
as
used herein, means the final prospectus supplement, relating to the Shares,
filed by the Company with the Commission pursuant to Rule 424(b) under the
Act
on or before the second business day after the date hereof (or such earlier
time
as may be required under the Act), in the form furnished by the Company to
you
for use by the Underwriters and by dealers in connection with the offering
of
the Shares.
“Prospectus,”
as
used herein, means the Prospectus Supplement together with the Basic Prospectus
attached to or used with the Prospectus Supplement.
“Permitted
Free Writing Prospectuses,”
as
used herein, means the documents listed on Schedule
B
attached
hereto and each “road show” (as defined in Rule 433 under the Act), if any,
related to the offering of the Shares contemplated hereby that is a “written
communication” (as defined in Rule 405 under the Act) (each such road show, a
“Road
Show”).
“Disclosure
Package,”
as
used herein, means any Pre-Pricing Prospectus or Basic Prospectus, in either
case together with any combination of one or more of the Permitted Free Writing
Prospectuses, if any, and a schedule as set forth in Schedule
C
indicating certain terms of the offering.
Any
reference herein to the registration statement, the Registration Statement,
any
Basic Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement,
the
Prospectus or any Permitted Free Writing Prospectus shall be deemed to refer
to
and include the documents, if any, incorporated by reference, or deemed to
be
incorporated by reference, therein (the “Incorporated
Documents”),
including, unless the context otherwise requires, the documents, if any,
filed
as exhibits to such Incorporated Documents. Any reference herein to the terms
“amend,”
“amendment”
or
“supplement”
with
respect to the Registration Statement, any Basic Prospectus, any Pre-Pricing
Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free
Writing Prospectus shall be deemed to refer to and include the filing of
any
document under the Securities Exchange Act of 1934, as amended, and the rules
and regulations thereunder (collectively, the “Exchange
Act”)
on or
after the initial effective date of the Registration Statement, or the date
of
such Basic Prospectus, such Pre-Pricing Prospectus, the Prospectus Supplement,
the Prospectus or such Permitted Free Writing Prospectus, as the case may
be,
and deemed to be incorporated therein by reference.
As
used
in this Agreement, “business
day”
shall
mean a day on which the Nasdaq National Market (the “NASDAQ”)
is
open for trading. The terms “herein,” “hereof,” “hereto,” “hereinafter” and
similar terms, as used in this Agreement, shall in each case refer to this
Agreement as a whole and not to any particular section, paragraph, sentence
or
other subdivision of this Agreement. The term “or,” as used herein, is not
exclusive.
-2-
The
Company, the Selling Stockholder and the Underwriters agree as
follows:
1. Sale
and Purchase.
Upon
the basis of the representations and warranties and subject to the terms
and
conditions herein set forth, the Selling Stockholder agrees to sell to the
respective Underwriters and each of the Underwriters, severally and not jointly,
agrees to purchase from the Selling Stockholder, the number of Firm Shares
set
forth opposite the name of such Underwriter in Schedule
A
annexed
hereto, subject to adjustment in accordance with Section 11
hereof,
at a purchase price of $19.068 per Share. The Selling Stockholder is advised
by
you that the Underwriters intend (i) to make a public offering of their
respective portions of the Firm Shares as soon after the effectiveness of
this
Agreement as in your judgment is advisable and (ii) initially to offer the
Firm
Shares upon the terms set forth in the Prospectus. You may from time to time
increase or decrease the public offering price after the initial public offering
to such extent as you may determine, as permitted by law.
In
addition, the Selling Stockholder hereby grants to the several Underwriters
the
option (the “Over-Allotment
Option”)
to
purchase, and upon the basis of the representations and warranties and subject
to the terms and conditions herein set forth, the Underwriters shall have
the
right to purchase, severally and not jointly, from the Selling Stockholder,
ratably in accordance with the number of Firm Shares to be purchased by each
of
them, all or a portion of the Additional Shares as may be necessary to cover
over-allotments made in connection with the offering of the Firm Shares,
at the
same purchase price per share to be paid by the Underwriters to the Selling
Stockholder for the Firm Shares. The Over-Allotment Option may be exercised
by
the Managing Underwriters on behalf of the several Underwriters at any time
and
from time to time on or before the thirtieth day following the date hereof,
by
written notice to the Selling Stockholder (with a copy to the Company). Such
notice shall set forth the aggregate number of Additional Shares as to which
the
Over-Allotment Option is being exercised and the date and time when the
Additional Shares are to be delivered (any such date and time being herein
referred to as an “additional
time of purchase”);
provided,
however,
that no
additional time of purchase shall be earlier than the time of purchase (as
defined below) nor earlier than the second business day after the date on
which
the Over-Allotment Option shall have been exercised nor later than the tenth
business day after the date on which the Over-Allotment Option shall have
been
exercised. The number of Additional Shares to be sold to each Underwriter
shall
be the number which bears the same proportion to the aggregate number of
Additional Shares being purchased as the number of Firm Shares set forth
opposite the name of such Underwriter on Schedule
A
hereto
bears to the total number of Firm Shares (subject, in each case, to such
adjustment as the Managing Underwriters may determine to eliminate fractional
shares), subject to adjustment in accordance with Section 11
hereof.
2. Payment
and Delivery.
Payment
of the purchase price for the Firm Shares shall be made to the Selling
Stockholder by Federal Funds wire transfer against delivery of the certificates
for the Firm Shares to you through the facilities of The Depository Trust
Company (“DTC”)
for
the respective accounts of the Underwriters. Such payment and delivery shall
be
made at 10:00 A.M., New York City time, on December 23, 2005 (unless another
time shall be agreed to by you, the Company and the Selling Stockholder or
unless postponed in accordance with the provisions of Section 11
hereof).
The time at which such payment and delivery are to
-3-
be
made
is hereinafter sometimes called the “time
of purchase.”
Electronic transfer of the Firm Shares shall be made to you at the time of
purchase in such names and in such denominations as you shall
specify.
Payment
of the purchase price for the Additional Shares shall be made at the additional
time of purchase in the same manner and at the same office as the payment
for
the Firm Shares. Electronic transfer of the Additional Shares shall be made
to
you at the additional time of purchase in such names and in such denominations
as you shall specify.
Deliveries
of the documents described in Section 9
hereof
with respect to the purchase of the Shares shall be made at the offices of
Davis
Polk & Wardwell at 450 Lexington Avenue, New York, New York, at 9:00 A.M.,
New York City time, on the date of the closing of the purchase of the Firm
Shares or the Additional Shares, as the case may be.
3. Representations
and Warranties of the Company.
The
Company represents and warrants to and agrees with each of the Underwriters
that:
(a) the
Registration Statement has heretofore become effective under the Act or,
with
respect to any registration statement to be filed to register the offer and
sale
of Shares pursuant to Rule 462(b) under the Act, will be filed with the
Commission and become effective under the Act no later than 10:00 P.M., New
York
City time, on the date of determination of the public offering price for
the
Shares; to the Company’s knowledge, no stop order of the Commission preventing
or suspending the use of any Basic Prospectus, any Pre-Pricing Prospectus,
the
Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus,
or the effectiveness of the Registration Statement, has been issued, and
no
proceedings for such purpose have been instituted or are contemplated by
the
Commission;
(b) the
Registration Statement complied when it became effective, complies as of
the
date hereof and, as amended or supplemented, at the time of purchase, each
additional time of purchase, if any, and at all times during which a prospectus
is required by the Act to be delivered (whether physically or through compliance
with Rule 172 under the Act or any similar rule) in connection with any sale
of
Shares, will comply, in each case, in all material respects, with the
requirements of the Act; the conditions to the use of Form S-3 in connection
with the offering and sale of the Shares as contemplated hereby have been
satisfied; the Registration Statement meets, and the offering and sale of
the
Shares as contemplated hereby complies with, the requirements of Rule 415
under
the Act (including, without limitation, Rule 415(a)(5)); the Registration
Statement did not, as of the Effective Time, contain an untrue statement
of a
material fact or omit to state a material fact required to be stated therein
or
necessary to make the statements therein not misleading; each Pre-Pricing
Prospectus complied, at the time it was filed with the Commission, and complies
as of the date hereof, in each case, in all material respects with the
requirements of the Act; at no time during the period that begins on the
earlier
of the date of such Pre-Pricing Prospectus and the date such Pre-Pricing
Prospectus was filed with the Commission and ends at the time of purchase
did or
will any Pre-Pricing Prospectus, as then amended or supplemented, include
an
untrue statement of a material
-4-
fact
or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
and at no time during such period did or will any Pre-Pricing Prospectus,
as
then amended or supplemented, together with any combination of one or more
of
the then issued Permitted Free Writing Prospectuses, if any, include an untrue
statement of a material fact or omit to state a material fact necessary in
order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; each Basic Prospectus complied or will comply,
at the time it was or will be filed with the Commission, complies as of the
date
hereof (if filed with the Commission on or prior to the date hereof) and,
at the
time of purchase, each additional time of purchase, if any, and at all times
during which a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any similar
rule) in connection with any sale of Shares, will comply, in all material
respects, with the requirements of the Act; at no time during the period
that
begins on the earlier of the date of such Basic Prospectus and the date such
Basic Prospectus was filed with the Commission and ends at the time of purchase
did or will any Basic Prospectus, as then amended or supplemented, include
an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under
which they were made, not misleading, and at no time during such period did
or
will any Basic Prospectus, as then amended or supplemented, together with
any
combination of one or more of the then issued Permitted Free Writing
Prospectuses, if any, include an untrue statement of a material fact or omit
to
state a material fact necessary in order to make the statements therein,
in the
light of the circumstances under which they were made, not misleading; each
of
the Prospectus Supplement and the Prospectus will comply, as of the date
that it
is filed with the Commission, the date of the Prospectus Supplement, the
time of
purchase, each additional time of purchase, if any, and at all times during
which a prospectus is required by the Act to be delivered (whether physically
or
through compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Shares, in all material respects, with the
requirements of the Act (in the case of the Prospectus, including, without
limitation, Section 10(a) of the Act); at no time during the period that
begins
on the earlier of the date of the Prospectus Supplement and the date the
Prospectus Supplement is filed with the Commission and ends at the later
of the
time of purchase, the latest additional time of purchase, if any, and the
end of
the period during which a prospectus is required by the Act to be delivered
(whether physically or through compliance with Rule 172 under the Act or
any
similar rule) in connection with any sale of Shares did or will any Prospectus
Supplement or the Prospectus, as then amended or supplemented, include an
untrue
statement of a material fact or omit to state a material fact necessary in
order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; at no time during the period that begins
on the
date of such Permitted Free Writing Prospectus and ends at the time of purchase
did or will any Permitted Free Writing Prospectus include an untrue statement
of
a material fact or omit to state a material fact necessary in order to make
the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided,
however,
that
the Company makes no representation or warranty with respect to any statement
contained in the Registration Statement, any Pre-Pricing Prospectus, the
Prospectus or any Permitted Free Writing Prospectus in reliance
-5-
upon
and
in conformity with information concerning an Underwriter and furnished in
writing by or on behalf of such Underwriter through you to the Company expressly
for use in the Registration Statement, such Pre-Pricing Prospectus, the
Prospectus or such Permitted Free Writing Prospectus; each Incorporated
Document, at the time such document was filed with the Commission or at the
time
such document became effective, as applicable, complied, in all material
respects, with the requirements of the Exchange Act and did not include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under
which they were made, not misleading;
(c) prior
to
the execution of this Agreement, the Company has not, directly or indirectly,
offered or sold any Shares by means of any “prospectus” (within the meaning of
the Act) or used any “prospectus” (within the meaning of the Act) in connection
with the offer or sale of the Shares, in each case other than the Pre-Pricing
Prospectuses and the Permitted Free Writing Prospectuses, if any; the Company
has not, directly or indirectly, prepared, used or referred to any Permitted
Free Writing Prospectus except in compliance with Rules 164 and 433 under
the
Act; assuming that such Permitted Free Writing Prospectus is so sent or given
after the Registration Statement was filed with the Commission (and after
such
Permitted Free Writing Prospectus was, if required pursuant to Rule 433(d)
under
the Act, filed with the Commission), the sending or giving, by any Underwriter,
of any Permitted Free Writing Prospectus will satisfy the provisions of Rule
164
or Rule 433 (without reliance on subsections (b), (c) and (d) of Rule 164);
the
conditions set forth in one or more of subclauses (i) through (iv), inclusive,
of Rule 433(b)(1) under the Act are satisfied, and the registration statement
relating to the offering of the Shares contemplated hereby, as initially
filed
with the Commission, includes a prospectus that, other than by reason of
Rule
433 or Rule 431 under the Act, satisfies the requirements of Section 10 of
the
Act; the Company is not disqualified, by reason of subsection (f) of Rule
164
under the Act, from using, in connection with the offer and sale of the Shares,
“free writing prospectuses” (as defined in Rule 405 under the Act) pursuant to
Rules 164 and 433 under the Act, and such offer and sale in the manner
contemplated hereby is not an excluded offering within the meaning of subsection
(g) of Rule 164 under the Act; the Company is not an “ineligible issuer” (as
defined in Rule 405 under the Act) as of the eligibility determination date
for
purposes of Rules 164 and 433 under the Act with respect to the offering
of the
Shares contemplated by the Registration Statement; the parties hereto agree
and
understand that the content of any and all “road shows” (as defined in Rule 433
under the Act) related to the offering of the Shares contemplated hereby
is
solely the property of the Company;
(d) the
Shares have been registered with the Commission on Form S-3 under the Act
pursuant to the standards for such Form S-3 in effect prior to October 21,
1992;
(e) as
of the
date given therein, the Company had an authorized and outstanding capitalization
as set forth in the sections of the Registration Statement, the Pre-Pricing
Prospectuses and the Prospectus entitled “Capitalization” and “Description of
capital stock” (and any similar sections or information, if any, contained in
any Permitted Free Writing Prospectus); all of the issued and outstanding
shares
of capital stock,
-6-
including
the Common Stock, of the Company have been duly authorized and validly issued
and are fully paid and non-assessable, have been issued in compliance with
all
applicable securities laws and were not issued in violation of any preemptive
right, resale right, right of first refusal or similar right; the Shares
are
duly listed, and admitted and authorized for trading, on the NASDAQ;
(f) the
Company has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of the State of Delaware, with full corporate
power
and authority to own, lease and operate its properties and conduct its business
as described in the Registration Statement, the Pre-Pricing Prospectuses,
the
Prospectus and the Permitted Free Writing Prospectuses, if any, and to execute
and deliver this Agreement;
(g) the
Company is duly qualified to do business as a foreign corporation and is
in good
standing in each jurisdiction where the ownership or leasing of its properties
or the conduct of its business requires such qualification, except where
the
failure to be so qualified and in good standing would not, individually or
in
the aggregate, reasonably be expected to either (i) have a material adverse
effect on the business, properties, financial condition or results of operations
of the Company and the Subsidiaries (as defined below) taken as a whole,
(ii)
prevent or materially interfere with consummation of the transactions
contemplated hereby or (iii) result in the delisting of shares of Common
Stock
from the NASDAQ (the occurrence of any such effect or any such prevention
or
interference or any such result described in the foregoing clauses (i), (ii)
and
(iii) being herein referred to as a “Material
Adverse Effect”);
(h) the
Company has no significant subsidiaries (as defined under Rule 1-02 of
Regulation S-X of the Act) other than Celestial Seasonings, Inc. (“Celestial”);
the Company owns all of the issued and outstanding capital stock of each
subsidiary (as defined under the Act; collectively, the “Subsidiaries”)
except
as described in the Registration Statement, each Pre-Pricing Prospectus and
the
Prospectus, or except (with respect to all Subsidiaries other than Celestial)
as
would not reasonably be expected to have a Material Adverse Effect and also
would not be material to an investor in the Shares; other than the capital
stock
of the Subsidiaries, the Company does not own, directly or indirectly, any
shares of stock or any other equity interests or long-term debt securities
of
any corporation, firm, partnership, joint venture, association or other entity
except as described in the Registration Statement, each Pre-Pricing Prospectus
and the Prospectus, or except as would not be material to an investor in
the
Shares; complete and correct copies of the charters and the bylaws of the
Company and each Subsidiary and all amendments thereto have been made available
to you, and no changes therein will be made on or after the date hereof through
and including the time of purchase or, if later, any additional time of
purchase, except (with respect to all Subsidiaries other than Celestial)
as
would not reasonably be expected to have a Material Adverse Effect and also
would not be material to an investor in the Shares; each Subsidiary has been
duly incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, with full corporate
power and authority to own, lease and operate its properties and to conduct
its
business as described in the Registration
-7-
Statement,
the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, except (with respect to all Subsidiaries other than
Celestial) as would not reasonably be expected to have a Material Adverse
Effect
and also would not be material to an investor in the Shares; each Subsidiary
is
duly qualified to do business as a foreign corporation and is in good standing
in each jurisdiction where the ownership or leasing of its properties or
the
conduct of its business requires such qualification, except as would not
reasonably be expected to have a Material Adverse Effect and also would not
be
material to an investor in the Shares; except (with respect to all Subsidiaries
other than Celestial) as would not reasonably be expected to have a Material
Adverse Effect and also would not be material to an investor in the Shares,
all
of the outstanding shares of capital stock of each of the Subsidiaries have
been
duly authorized and validly issued, are fully paid and non-assessable, have
been
issued in compliance with all applicable securities laws, were not issued
in
violation of any preemptive right, resale right, right of first refusal or
similar right and are owned by the Company subject to no security interest,
other encumbrance or adverse claims; and no options, warrants or other rights
to
purchase, agreements or other obligations to issue or other rights to convert
any obligation into shares of capital stock or ownership interests in the
Subsidiaries are outstanding, except (with respect to all Subsidiaries other
than Celestial) as would not reasonably be expected to have a Material Adverse
Effect and also would not be material to an investor in the Shares;
(i) the
Shares have been duly and validly authorized and issued, and are fully paid,
non-assessable and free of statutory and contractual preemptive rights, resale
rights, rights of first refusal and similar rights other than rights under
the
Investor’s Agreement among the Company, the Selling Stockholder and Irwin D.
Simon, dated September 24, 1999, that are not applicable or have been duly
waived as to the transactions contemplated hereby; the Shares are and, after
they are delivered against payment therefor as provided herein, will be free
of
any restriction upon the voting or transfer thereof pursuant to the Company’s
charter or bylaws or any agreement or other instrument to which the Company
is a
party;
(j) the
capital stock of the Company, including the Shares, conforms in all material
respects to each description thereof, if any, contained or incorporated by
reference in the Registration Statement, any Pre-Pricing Prospectuses, the
Prospectus or any Permitted Free Writing Prospectus; and the certificates
for
the Shares were, when issued to the Selling Stockholder, in due and proper
form;
(k) this
Agreement has been duly authorized, executed and delivered by the
Company;
(l) neither
the Company nor any of the Subsidiaries is in breach or violation of or in
default under (nor has any event occurred which, with notice, lapse of time
or
both, would result in any breach or violation of, constitute a default under
or
give the holder of any indebtedness (or a person acting on such holder’s behalf)
the right to require the repurchase, redemption or repayment of all or a
part of
such indebtedness under) (A) its charter or bylaws, or (B) any indenture,
mortgage, deed of trust, bank loan
-8-
or
credit
agreement or other evidence of indebtedness, or any license, lease, contract
or
other agreement or instrument to which it is a party or by which it or any
of
its properties may be bound or affected, or (C) any federal, state, local
or
foreign law, regulation or rule, or (D) any rule or regulation of any
self-regulatory organization or other non-governmental regulatory authority
(including, without limitation, the rules and regulations of NASDAQ), or
(E) any
decree, judgment or order applicable to it or any of its properties except,
in
(B), (C), (D) or (E), as would not reasonably be expected to have a Material
Adverse Effect;
(m) the
execution, delivery and performance of this Agreement, the sale of the Shares
pursuant hereto and the consummation of the transactions contemplated hereby
will not conflict with, result in any breach or violation of or constitute
a
default under (nor constitute any event which, with notice, lapse of time
or
both, would result in any breach or violation of, constitute a default under
or
give the holder of any indebtedness (or a person acting on such holder’s behalf)
the right to require the repurchase, redemption or repayment of all or a
part of
such indebtedness under) or result in the creation or imposition of a lien,
charge or encumbrance on any property or assets of the Company or any Subsidiary
pursuant to (A) the charter or bylaws of the Company or any of the Subsidiaries,
or (B) any indenture, mortgage, deed of trust, bank loan or credit agreement
or
other evidence of indebtedness, or any license, lease, contract or other
agreement or instrument to which the Company or any of the Subsidiaries is
a
party or by which any of them or any of their respective properties may be
bound
or affected, or (C) any federal, state, local or foreign law, regulation
or
rule, or (D) any rule or regulation of any self-regulatory organization or
other
non-governmental regulatory authority (including, without limitation, the
rules
and regulations of the NASDAQ), or (E) any decree, judgment or order applicable
to the Company or any of the Subsidiaries or any of their respective
properties;
(n) no
approval, authorization, consent or order of or filing with any federal,
state,
local or foreign governmental or regulatory commission, board, body, authority
or agency (including, without limitation, the Federal Trade Commission, the
Food
and Drug Administration, the United States Department of Agriculture, and
the
Occupational Safety and Health Administration), or of or with any
self-regulatory organization or other non-governmental regulatory authority
(including, without limitation, the NASDAQ), or approval of the stockholders
of
the Company (other than the Selling Stockholder), is required in connection
with
the sale of the Shares by the Selling Stockholder pursuant hereto or the
consummation of the transactions contemplated hereby, other than (i)
registration of the Shares under the Act, which
has
been effected (or, with respect to any registration statement to be filed
hereunder pursuant to Rule 462(b) under the Act, will be effected in accordance
herewith), (ii) any necessary qualification under the securities or blue
sky
laws of the various jurisdictions in which the Shares are being offered by
the
Underwriters or (iii) under the Conduct Rules of the National Association
of
Securities Dealers, Inc. (the “NASD”);
(o) except
as
described in the Registration Statement (excluding the exhibits thereto),
each
Pre-Pricing Prospectus and the Prospectus, (i) no person has the right,
-9-
contractual
or otherwise, to cause the Company to issue or sell to it any shares of Common
Stock or shares of any other capital stock or other equity interests of the
Company, except as would not reasonably be expected to have a Material Adverse
Effect and also would not be material to an investor in the Shares, (ii)
no
person has any preemptive rights, resale rights, rights of first refusal
or
other rights to purchase any shares of Common Stock or shares of any other
capital stock of or other equity interests in the Company and (iii) no person
has the right to act as an underwriter or as a financial advisor to the Company
in connection with the offer and sale of the Shares; no person has the right,
contractual or otherwise, to cause the Company to register under the Act
any
shares of Common Stock or shares of any other capital stock of or other equity
interests in the Company, except as would not reasonably be expected to have
a
Material Adverse Effect and also would not be material to an investor in
the
Shares; no person has the right, contractual or otherwise, to cause the Company
to include any shares of Common Stock or shares of any other capital stock
of or
other equity interests in the Company in the Registration Statement or the
offering contemplated thereby;
(p) each
of
the Company and the Subsidiaries has all licenses, authorizations, consents
and
approvals and has made all filings required under any applicable law, regulation
or rule, and has obtained all licenses, authorizations, consents and approvals
from other persons, necessary in order to conduct their respective businesses
except as would not reasonably be expected to have a Material Adverse Effect;
neither the Company nor any of the Subsidiaries is in violation of, or in
default under, or has received notice of any proceedings relating to revocation
or modification of, any such license, authorization, consent or approval
or any
federal, state, local or foreign law, regulation or rule or any decree, order
or
judgment applicable to the Company or any of the Subsidiaries, except where
such
violation, default, revocation or modification would not, individually or
in the
aggregate, reasonably be expected to have a Material Adverse
Effect;
(q) there
are
no actions, suits, claims, investigations (as to which the Company has
knowledge) or proceedings pending or, to the Company’s knowledge, threatened or
contemplated to which the Company or any of the Subsidiaries or any of their
respective directors or officers is or would be a party or of which any of
their
respective properties is or would be subject at law or in equity, before
or by
any federal, state, local or foreign governmental or regulatory commission,
board, body, authority or agency, or before or by any self-regulatory
organization or other non-governmental regulatory authority (including, without
limitation, the NASDAQ), except any such action, suit, claim, investigation
or
proceeding which, if resolved adversely to the Company or any Subsidiary,
would
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect;
(r) Ernst
& Young LLP, whose report on the consolidated financial statements of the
Company and the Subsidiaries is included or incorporated by reference in
the
Registration Statement, the Pre-Pricing Prospectuses and the Prospectus,
are
independent registered public accountants as required by the Act and by the
rules of the Public Company Accounting Oversight Board;
-10-
(s) the
financial statements included or incorporated by reference in the Registration
Statement, any Pre-Pricing Prospectus, the Prospectus or any Permitted Free
Writing Prospectus, together with the related notes and schedules, present
fairly, in all material respects, the consolidated financial position of
the
Company and the Subsidiaries as of the dates indicated and the consolidated
results of operations, cash flows and changes in stockholders’ equity of the
Company for the periods specified and have been prepared in compliance with
the
requirements of the Act and Exchange Act and in conformity with U.S. generally
accepted accounting principles applied on a consistent basis during the periods
involved; the other financial data contained or incorporated by reference
in the
Registration Statement, any Pre-Pricing Prospectus, the Prospectus or any
Permitted Free Writing Prospectus are accurately and fairly presented and
prepared on a basis consistent with the financial statements and books and
records of the Company; there are no financial statements (historical or
pro
forma) that are required to be included or incorporated by reference in the
Registration Statement, any Pre-Pricing Prospectus or the Prospectus that
are
not included or incorporated by reference as required; the Company and the
Subsidiaries do not have any material liabilities or obligations, direct
or
contingent (including any off-balance sheet obligations), not described in
the
Registration Statement (excluding the exhibits thereto), each Pre-Pricing
Prospectus and the Prospectus; and all disclosures contained or incorporated
by
reference in the Registration Statement, any Pre-Pricing Prospectus, the
Prospectus or any Permitted Free Writing Prospectus regarding “non-GAAP
financial measures” (as such term is defined by the rules and regulations of the
Commission) comply with Regulation G of the Exchange Act and Item 10 of
Regulation S-K under the Act, to the extent applicable;
(t) subsequent
to the respective dates as of which information is given in the Registration
Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted
Free
Writing Prospectuses, if any, in each case excluding any amendments or
supplements to the foregoing made after the execution of this Agreement,
except
as otherwise describe therein (exclusive of any amendment thereof or supplement
thereto occurring after the execution and delivery hereof) there has not
been
(i) any material adverse change, or any development involving a prospective
material adverse change, in the business, properties, management, financial
condition or results of operations of the Company and the Subsidiaries taken
as
a whole, (ii) any transaction which is material to the Company and the
Subsidiaries taken as a whole, (iii) any obligation or liability, direct
or
contingent (including any off-balance sheet obligations), incurred by the
Company or any Subsidiary, which is material to the Company and the Subsidiaries
taken as a whole, (iv) any material change in the capital stock or outstanding
indebtedness of the Company or any Subsidiaries or (v) any dividend or
distribution of any kind declared, paid or made on the capital stock of the
Company or any Subsidiary;
(u) the
Company has obtained for the benefit of the Underwriters the agreement (a
“Lock-Up
Agreement”),
in
the form set forth as Exhibit
A
hereto,
of each of the persons listed on Exhibit A-1 hereto;
-11-
(v) neither
the Company nor any Subsidiary is, and at no time during which a prospectus
is
required by the Act to be delivered (whether physically or through compliance
with Rule 172 under the Act or any similar rule) in connection with any sale
of
Shares will either of them be, and, after giving effect to the offering and
sale
of the Shares, neither of them will be, an “investment company” or an entity
“controlled” by an “investment company,” as such terms are defined in the
Investment Company Act of 1940, as amended (the “Investment
Company Act”);
(w) the
Company and each of the Subsidiaries have good and marketable title to all
property (real and personal) described in the Registration Statement, any
Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus
as being owned by any of them, free and clear of all liens, claims, security
interests or other encumbrances, except as would not, individually or in
the
aggregate, reasonably be expected to have a Material Adverse Effect; all
the
property described in the Registration Statement, any Pre-Pricing Prospectus,
the Prospectus or any Permitted Free Writing Prospectus as being held under
lease by the Company or a Subsidiary is held thereby under valid, subsisting
and
enforceable leases, except as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect;
(x) the
Company and the Subsidiaries own, or have obtained valid and enforceable
licenses for, or other rights to use, the inventions, patent applications,
patents, trademarks (both registered and unregistered), tradenames, copyrights,
trade secrets and other proprietary information described in the Registration
Statement, any Pre-Pricing Prospectus, the Prospectus or any Permitted Free
Writing Prospectus as being owned or licensed by them and which are necessary
for the conduct of their respective businesses as currently conducted or
as
proposed to be conducted, except where the failure to own, license or have
such
rights would not, individually or in the aggregate, reasonably be expected
to
have a Material Adverse Effect (collectively, “Intellectual
Property”);
except as would not, individually or in the aggregate, reasonably be expected
to
have a Material Adverse Effect: (i) to the Company’s knowledge, there are no
third parties who have established or will be able to establish rights to
any
Intellectual Property, except for, and to the extent of, the ownership rights
of
the owners of the Intellectual Property which the Registration Statement
(excluding the exhibits thereto), each Pre-Pricing Prospectus and the Prospectus
disclose is licensed to the Company; (ii) to the Company’s knowledge, there is
no infringement by third parties of any Intellectual Property; (iii) there
is no
pending or, to the Company’s knowledge, threatened action, suit, proceeding or
claim by others challenging the Company’s rights in or to any Intellectual
Property, and the Company is unaware of any facts which could form a reasonable
basis for any such action, suit, proceeding or claim; (iv) there is no pending
or, to the Company’s knowledge, threatened action, suit, proceeding or claim by
others challenging the validity, enforceability or scope of any Intellectual
Property, and the Company is unaware of any facts which could form a reasonable
basis for any such action, suit, proceeding or claim; (v) there is no pending
or, to the Company’s knowledge, threatened action, suit, proceeding or claim by
others that the Company or any Subsidiary infringes or otherwise violates
any
patent, trademark, tradename, copyright, trade secret or other proprietary
rights of others, and the Company is unaware
-12-
of
any
facts which could form a reasonable basis for any such action, suit, proceeding
or claim; (vi) to the Company’s knowledge, the Company and the Subsidiaries have
complied with the terms of each agreement pursuant to which Intellectual
Property has been licensed to the Company or any Subsidiary, and all such
agreements are in full force and effect; (vii) to the Company’s knowledge, there
is no patent or patent application that contains claims that interfere with
the
issued or pending claims of any of the Intellectual Property or that challenges
the validity, enforceability or scope of any of the Intellectual Property;
and
(viii) to the Company’s knowledge, there is no prior art that may render any
patent application within the Intellectual Property unpatentable that has
not
been disclosed to the U.S. Patent and Trademark Office;
(y) except
for matters which would not, individually or in the aggregate, reasonably
be
expected to have a Material Adverse Effect, (i) neither the Company nor any
of
the Subsidiaries is engaged in any unfair labor practice, (ii) there is (A)
no
unfair labor practice complaint pending or, to the Company’s knowledge,
threatened against the Company or any of the Subsidiaries before the National
Labor Relations Board, and no grievance or arbitration proceeding arising
out of
or under collective bargaining agreements is pending or, to the Company’s
knowledge, threatened, (B) no strike, labor dispute, slowdown or stoppage
pending or, to the Company’s knowledge, threatened against the Company or any of
the Subsidiaries and (C) to the Company’s knowledge, no union representation
dispute currently existing concerning the employees of the Company or any
of the
Subsidiaries, (iii) to the Company’s knowledge, no union organizing activities
are currently taking place concerning the employees of the Company or any
of the
Subsidiaries and (iv) to the Company’s knowledge, there has been no violation of
any federal, state, local or foreign law relating to discrimination in the
hiring, promotion or pay of employees, any applicable wage or hour laws or
any
provision of the Employee Retirement Income Security Act of 1974 (“ERISA”)
or the
rules and regulations promulgated thereunder concerning the employees of
the
Company or any of the Subsidiaries;
(z) the
Company and the Subsidiaries and their respective properties, assets and
operations are in compliance with, and the Company and each of the Subsidiaries
hold all permits, authorizations and approvals required for its current
operations under, Environmental Laws (as defined below), except to the extent
that failure to so comply or to hold such permits, authorizations or approvals
would not, individually or in the aggregate, reasonably be expected to have
a
Material Adverse Effect; there are no past, present or, to the Company’s
knowledge, reasonably anticipated future events, conditions, activities,
practices or actions that would reasonably be expected to give rise to any
material costs or liabilities to the Company or any Subsidiary under, or
to
prevent compliance by the Company or any Subsidiary with, Environmental Laws;
except as would not, individually or in the aggregate, reasonably be expected
to
have a Material Adverse Effect, neither the Company nor any of the Subsidiaries
(i) to the knowledge of the Company, is the subject of any investigation,
(ii)
has received any notice or claim, (iii) is a party to any pending or, to
the
Company’s knowledge, threatened action, suit or proceeding, (iv) is bound by any
judgment, decree or order or (v) has entered into any agreement, in each
case
relating to any alleged violation of any Environmental Law or
-13-
any
actual or alleged release or threatened release or cleanup at any location
of
any Hazardous Materials (as defined below) (as used herein, “Environmental
Law”
means
any federal, state, local or foreign law, statute, ordinance, rule, regulation,
order, decree, judgment, injunction, permit, license or authorization, or
common
law, relating to the protection, cleanup or restoration of the environment
or
natural resources, or human health (to the extent relating to exposure to
Hazardous Materials), including those relating to the distribution, processing,
generation, treatment, storage, disposal, transportation, other handling
or
release or threatened release of Hazardous Materials, and “Hazardous
Materials”
means
any material (including, without limitation, pollutants, contaminants, hazardous
or toxic substances or wastes) that is regulated by or gives rise to liability
under any Environmental Law);
(aa) in
the
ordinary course of their business and as reasonably appropriate for their
business, the Company and each of the Subsidiaries conduct periodic reviews
of
the effect of the Environmental Laws on their respective businesses, operations
and properties, in the course of which they identify and evaluate any associated
costs and liabilities (including, without limitation, any capital or operating
expenditures required for cleanup, closure of properties or compliance with
the
Environmental Laws or any permit, license or approval, any related constraints
on operating activities and any potential liabilities to third
parties);
(bb) all
tax
returns required to be filed by the Company or any of the Subsidiaries have
been
timely filed, and all taxes and other assessments of a similar nature (whether
imposed directly or through withholding) including any interest, additions
to
tax or penalties applicable thereto due or claimed to be due from such entities
have been timely paid, other than those being contested in good faith and
for
which adequate reserves have been provided;
(cc) the
Company and each of the Subsidiaries maintain insurance covering their
respective properties, operations, personnel and businesses as the Company
reasonably deems adequate; such insurance insures against such losses and
risks
to an extent which is adequate in accordance with customary industry practice
to
protect the Company and the Subsidiaries and their respective businesses;
all
such insurance is fully in force on the date hereof and will be fully in
force
at the time of purchase and any additional time of purchase; neither the
Company
nor any Subsidiary has reason to believe that it will not be able to renew
any
such insurance as and when such insurance expires or replace with comparable
insurance at comparable rates;
(dd) neither
the Company nor any of the Subsidiaries has sustained since the date of the
last
audited consolidated financial statements of the Company included or
incorporated by reference in the Registration Statement, the Pre-Pricing
Prospectuses and the Prospectus any loss or interference with its business
from
fire, explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree,
except as would not have a Material Adverse Effect;
-14-
(ee) neither
the Company nor any Subsidiary has sent or received any communication regarding
termination of, or intent not to renew, any of the contracts or agreements
specifically identified in any Pre-Pricing Prospectus, the Prospectus or
any
Permitted Free Writing Prospectus, or specifically identified in, or filed
as an
exhibit to, the Registration Statement or any Incorporated Document, and
no such
termination or non-renewal has been threatened by the Company or any Subsidiary
or, to the Company’s knowledge, any other party to any such contract or
agreement;
(ff) the
Company and each of the Subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions
are
executed in accordance with management’s general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and
to
maintain accountability for assets; (iii) access to assets is permitted only
in
accordance with management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences;
(gg) the
Company has established and maintains and evaluates “disclosure controls and
procedures” (as such term is defined in Rule 13a-15 and 15d-15 under the
Exchange Act) and “internal control over financial reporting” (as such term is
defined in Rule 13a-15 and 15d-15 under the Exchange Act); such disclosure
controls and procedures are designed to ensure that material information
relating to the Company, including its consolidated subsidiaries, is made
known
to the Company’s Chief Executive Officer and its Chief Financial Officer by
others within those entities, and such disclosure controls and procedures
are
effective to perform the functions for which they were established; the
Company’s independent auditors and the Audit Committee of the Board of Directors
of the Company have been advised of: (i) all significant deficiencies,
if any,
in the design or operation of internal controls which could adversely affect
the
Company’s ability to record, process, summarize and report financial data; and
(ii) all fraud, if any, whether or not material, that involves management
or
other employees who have a role in the Company’s internal controls; all
material weaknesses, if any, in internal controls have been identified
to the
Company’s independent auditors; since the date of the most recent evaluation of
such disclosure controls and procedures and internal controls, there have
been
no significant changes in internal controls or in other factors that could
significantly affect internal controls, including any corrective actions
with
regard to significant deficiencies and material weaknesses;
the
principal executive officers (or their equivalents) and principal financial
officers (or their equivalents) of the Company have made all certifications
required by the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley
Act”)
and
any related rules and regulations promulgated by the Commission, and the
statements contained in each such certification are complete and correct;
the
Company, the Subsidiaries and the Company’s directors and officers are each in
compliance in all material respects with all applicable effective provisions
of
the Sarbanes-Oxley Act and the rules and regulations of the Commission
and the
NASDAQ promulgated thereunder;
-15-
(hh) each
“forward-looking statement” (within the meaning of Section 27A of the Act or
Section 21E of the Exchange Act) contained or incorporated by reference in
the
Registration Statement, any Pre-Pricing Prospectus, the Prospectus or any
Permitted Free Writing Prospectus has been made or reaffirmed with a reasonable
basis and in good faith;
(ii) all
statistical or market-related data included or incorporated by reference
in the
Registration Statement, any Pre-Pricing Prospectus, the Prospectus or any
Permitted Free Writing Prospectus are based on or derived from sources that
the
Company believes to be reliable and accurate, and the Company has obtained
the
written consent to the use of such data from such sources to the extent
required;
(jj) neither
the Company nor any of the Subsidiaries nor, to the Company’s
knowledge, any employee or agent of the Company or any Subsidiary has made
any
payment of funds of the Company or any Subsidiary or received or retained
any
funds in violation of any law, rule or regulation (including, without
limitation, the Foreign Corrupt Practices Act of 1977), which payment, receipt
or retention of funds is of a character required to be disclosed in the
Registration Statement, any Pre-Pricing Prospectus or the
Prospectus;
(kk) no
Subsidiary is currently prohibited, directly or indirectly, from paying any
dividends to the Company, from making any other distribution on such
Subsidiary’s capital stock, from repaying to the Company any loans or advances
to such Subsidiary from the Company or from transferring any of such
Subsidiary’s property or assets to the Company or any other Subsidiary of the
Company, except as described in the Registration Statement (excluding the
exhibits thereto), each Pre-Pricing Prospectus and the Prospectus, or except
as
would not reasonably be expected to have a Material Adverse Effect and also
would not be material to an investor in the Shares;
(ll) the
sale
of the Shares will not cause any holder of any shares of capital stock,
securities convertible into or exchangeable or exercisable for capital stock
or
options, warrants or other rights to purchase capital stock or any other
securities of the Company to have any right to acquire any shares of preferred
stock of the Company;
(mm) the
Company has not received any notice from the NASDAQ regarding the delisting
of
the Common Stock from the NASDAQ;
(nn) neither
the Company nor any of the Subsidiaries has incurred any liability for any
finder’s or broker’s fee or agent’s commission in connection with the execution
and delivery of this Agreement or the consummation of the transactions
contemplated hereby or by the Registration Statement;
(oo) neither
the Company nor any of the Subsidiaries nor any of their respective directors,
officers, affiliates or controlling persons has taken, directly or indirectly,
any action designed, or which has constituted or might reasonably be expected
to
cause or result in the stabilization or manipulation of the price of any
security of the
-16-
Company
to facilitate the sale or resale of the Shares; and
(pp) to
the
Company’s knowledge, there are no affiliations or associations between (i) any
member of the NASD and (ii) the Company or any of the Company’s officers,
directors or 5% or greater security holders (except no representation is
made
with respect to the Selling Stockholder) or any beneficial owner of the
Company’s unregistered equity securities that were acquired at any time on or
after the 180th day immediately preceding the date the Registration Statement
was initially filed with the Commission, except as disclosed in the Registration
Statement (excluding the exhibits thereto), the Pre-Pricing Prospectuses
and the
Prospectus.
In
addition, any certificate signed by any officer of the Company or any of
the
Subsidiaries and delivered to the Underwriters or counsel for the Underwriters
at the time of purchase or any additional time of purchase in connection
with
the offering of the Shares shall be deemed to be a representation and warranty
by the Company, as to matters covered thereby, to each Underwriter.
4. Representations
and Warranties of the Selling Stockholder.
The
Selling Stockholder represents and warrants to each of the Underwriters
that:
(a) the
Selling Stockholder now is and, at the time of delivery of such Shares (whether
the time of purchase or any additional time of purchase, as the case may
be),
will be the lawful owner of the Shares and has and, at the time of delivery
of
such Shares, will have good and valid title to such Shares, and upon delivery
of
and payment for such Shares (whether at the time of purchase or any additional
time of purchase, as the case may be), the Underwriters will acquire good
and
valid title to such Shares free and clear of all adverse claims (as defined
in
Section 8-102 of the U.C.C. as in effect in the State of New York);
(b) the
Selling Stockholder has and, at the time of delivery of the Shares (whether
the
time of purchase or any additional time of purchase, as the case may be),
will
have full legal right, power and capacity, and all authorizations and approvals
required by law (other than those imposed by the Act and state securities
or
blue sky laws), to (i) enter into this Agreement and the Custody Agreement
(as
defined below), (ii) sell, assign, transfer and deliver the Shares in the
manner
provided in this Agreement and (iii) make the representations, warranties
and
agreements made by the Selling Stockholder herein;
(c) this
Agreement and the custody agreement (the “Custody Agreement”), dated December 9,
2005 between Continental Stock Transfer & Trust Company, as custodian (the
“Custodian”), and the Selling Stockholder have each been duly authorized,
executed and delivered by the Selling Stockholder, and each is a legal, valid
and binding agreement of the Selling Stockholder enforceable in accordance
with
its terms;
(d) the
Registration Statement did not, as of the Effective Time, contain an untrue
statement of a material fact or omit to state a material fact required to
be
stated therein or necessary to make the statements therein not misleading;
at no
time during the
-17-
period
that begins on the earlier of the date of each Pre-Pricing Prospectus and
the
date such Pre-Pricing Prospectus was filed with the Commission and ends at
the
time of purchase did or will any such Pre-Pricing Prospectus, as then amended
or
supplemented, include an untrue statement of a material fact or omit to state
a
material fact necessary in order to make the statements therein, in the light
of
the circumstances under which they were made, not misleading, and at no time
during such period did or will any Pre-Pricing Prospectus, as then amended
or
supplemented, together with any combination of one or more of the then issued
Permitted Free Writing Prospectuses, include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; at no time during the period that begins on the earlier of the
date
of the Prospectus and the date the Prospectus is filed with the Commission
and
ends at the later of the time of purchase, the latest additional time of
purchase, if any, and the end of the period during which a prospectus is
required by the Act to be delivered (whether physically or through compliance
with Rule 172 under the Act or any similar rule) in connection with any sale
of
Shares did or will the Prospectus, as then amended or supplemented, include
an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under
which they were made, not misleading; at no time during the period that begins
on the date of such Permitted Free Writing Prospectus and ends at the time
of
purchase did or will any Permitted Free Writing Prospectus, include an untrue
statement of a material fact or omit to state a material fact necessary in
order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, provided that the Selling Stockholder makes
such
representation and warranty only with respect to any statements or omissions
made in reliance upon and in conformity with information relating to the
Selling
Stockholder furnished to the Company in writing expressly for use in the
Registration Statement, Pre-Pricing Prospectus, any Permitted Free Writing
Prospectus or Prospectus;
(e) the
sale
of the Shares pursuant to this Agreement is not prompted by any material
information concerning the Company or any Subsidiary which is not set forth
in
the Registration Statement (excluding the exhibits thereto), any Pre-Pricing
Prospectus or the Prospectus;
(f) neither
the Selling Stockholder nor any of its affiliates has taken, directly or
indirectly, any action designed to, or which has constituted or would reasonably
be expected to cause or result in the stabilization or manipulation of the
price
of the Shares in violation of Regulation M under the Act;
(g) there
are
no affiliations or associations between any member of the NASD and the Selling
Stockholder, except as disclosed in the Registration Statement (excluding
the
exhibits thereto), each Pre-Pricing Prospectus and the Prospectus; none of
the
proceeds received by the Selling Stockholder from the sale of the Shares
pursuant to this Agreement will be paid to a member of the NASD or any affiliate
of (or person “associated with,” as such terms are used in the Rules of the
NASD) such member;
-18-
(h) at
the
time of purchase and each additional time of purchase, all stock transfer
or
other taxes (other than income taxes), if any, that are required to be paid
in
connection with the sale and transfer of the Shares to the several Underwriters
hereunder will be fully paid or provided for by the Selling Stockholder,
and all
laws imposing such taxes will be fully complied with;
(i) no
approval, authorization, consent or order of or filing with any federal,
state,
local or foreign governmental or regulatory commission, board, body, authority
or agency, or of or with any self-regulatory organization or other
non-governmental regulatory authority (including, without limitation, the
NASDAQ), is required in connection with the sale of the Shares pursuant to
this
Agreement or the consummation by the Selling Stockholder of the transactions
contemplated hereby or by the Custody Agreement other than (i) registration
of
the Shares under the Act, which has been effected (or, with respect to any
registration statement to be filed hereunder pursuant to Rule 462(b) under
the
Act, will be effected in accordance herewith), (ii) any necessary qualification
under the securities or blue sky laws of the various jurisdictions in which
the
Shares are being offered by the Underwriters or (iii) under the Conduct Rules
of
the NASD;
(j) the
Selling Stockholder has not, prior to the execution of this Agreement, offered
or sold any Shares by means of any “prospectus” (within the meaning of the Act),
or used any “prospectus” (within the meaning of the Act) in connection with the
offer or sale of the Shares, in each case other than the then most recent
Pre-Pricing Prospectus; and
(k) pursuant
to the Custody Agreement, certificates in negotiable form for the Shares
to be
sold by the Selling Stockholder pursuant to this Agreement have been placed
in
custody for the purpose of making delivery of such Shares in accordance with
this Agreement; the Selling Stockholder agrees that (i) such Shares represented
by such certificates are for the benefit of, and coupled with and subject
to the
interest of, the Custodian, the Underwriters and the Company, (ii) the
arrangements made by the Selling Stockholder for custody and for the appointment
of the Custodian and the are irrevocable, and (iii) the obligations of the
Selling Stockholder hereunder shall not be terminated by operation of law,
or by
the occurrence of any event (each, an “Event”) (including the bankruptcy,
insolvency, liquidation or dissolution of the Selling Stockholder or any
other
event); if an Event occurs before the delivery of the Shares hereunder,
certificates for the Shares shall be delivered by the Custodian in accordance
with the terms and conditions of the Custody Agreement and this Agreement,
and
actions taken by the Custodian pursuant to such Custody Agreement shall be
as
valid as if such Event had not occurred, regardless of whether or not the
Custodian shall have received notice thereof; and
(l) neither
the execution, delivery and performance of this Agreement or the Custody
Agreement nor the sale by the Selling Stockholder of the Shares nor the
consummation of the transactions contemplated hereby or thereby will conflict
with, result in any breach or violation of or constitute a default under
(or
constitute any event which with notice, lapse of time or both would result
in
any breach or violation of or
-19-
constitute
a default under) (i) the limited liability company agreement or other
organizational instruments of the Selling Stockholder, (ii) any indenture,
mortgage, deed of trust, bank loan or credit agreement or other evidence
of
indebtedness, or any license, lease, contract or other agreement or instrument
to which the Selling Stockholder is a party or by which the Selling Stockholder
or any of its properties may be bound or affected, (iii) any federal, state,
local or foreign law, regulation or rule, (iv) or any rule or regulation
of any
self-regulatory organization or other non-governmental regulatory authority,
or
(v) any decree, judgment or order applicable to the Selling Stockholder or
any
of its properties, except, in the case of clauses (ii) through (v) above
that
would not have any material adverse effect on the Selling Stockholder or
any
adverse effect on the consummation of the transactions contemplated hereby
or
result in any liability for the Company, the Underwriters or any purchaser
of
Shares.
5. Certain
Covenants of the Company.
The
Company hereby agrees:
(a) to
furnish such information as may be reasonably required and otherwise to
cooperate in qualifying the Shares for offering and sale under the securities
or
blue sky laws of such states or other jurisdictions as you may designate
and to
maintain such qualifications in effect so long as you may request for the
distribution of the Shares; provided,
however,
that
the Company shall not be required to qualify as a foreign corporation, to
consent to the service of process under the laws of any such jurisdiction
(except service of process with respect to the offering and sale of the Shares)
or subject itself to taxation in any jurisdiction it is not otherwise so
subject; and to promptly advise you of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Shares
for offer or sale in any jurisdiction or the initiation or threatening of
any
proceeding for such purpose;
(b) to
make
available to the Underwriters in New York City, as soon as practicable after
this Agreement becomes effective, and thereafter from time to time to furnish
to
the Underwriters, as many copies of the Prospectus (or of the Prospectus
as
amended or supplemented if the Company shall have made any amendments or
supplements thereto after the effective date of the Registration Statement)
as
the Underwriters may request for the purposes contemplated by the Act; in
case
any Underwriter is required to deliver (whether physically or through compliance
with Rule 172 under the Act or any similar rule), in connection with the
sale of
the Shares, a prospectus after the nine-month period referred to in Section
10(a)(3) of the Act, or after the time a post-effective amendment to the
Registration Statement is required pursuant to Item 512(a) of Regulation
S-K
under the Act, the Company will prepare, at its expense, promptly upon request
such amendment or amendments to the Registration Statement and the Prospectus
as
may be necessary to permit compliance with the requirements of Section 10(a)(3)
of the Act or Item 512(a) of Regulation S-K under the Act, as the case may
be;
(c) if,
at
the time this Agreement is executed and delivered, it is necessary for a
post-effective amendment to the Registration Statement, or a Registration
Statement
-20-
under
Rule 462(b) under the Act, to be filed with the Commission and become effective
before the Shares may be sold, the Company will use its commercially reasonable
efforts to cause such post-effective amendment or such Registration Statement
to
be filed and become effective as soon as possible, and the Company will advise
you promptly and, if requested by you, will confirm such advice in writing,
(i)
when such post-effective amendment or such Registration Statement has become
effective, and (ii) if Rule 430A under the Act is used, when the Prospectus
is
filed with the Commission pursuant to Rule 424(b) under the Act (which the
Company agrees to file in a timely manner in accordance with such
Rules);
(d) to
advise
you promptly, confirming such advice in writing, of any request by the
Commission for amendments or supplements to the Registration Statement, any
Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus
or for additional information with respect thereto, or of notice of institution
of proceedings for, or the entry of a stop order, suspending the effectiveness
of the Registration Statement and, if the Commission should enter a stop
order
suspending the effectiveness of the Registration Statement, to use its
commercially reasonable efforts to obtain the lifting or removal of such
order
as soon as possible; to advise you promptly of any proposal to amend or
supplement the Registration Statement, any Pre-Pricing Prospectus or the
Prospectus, and to provide you and Underwriters’ counsel copies of any such
documents for review and comment a reasonable amount of time prior to any
proposed filing and to file no such amendment or supplement to which you
shall
object in writing;
(e) subject
to Section 5(d)
hereof,
to file promptly all reports and documents and any preliminary or definitive
proxy or information statement required to be filed by the Company with the
Commission in order to comply with the Exchange Act for so long as a prospectus
is required by the Act to be delivered (whether physically or through compliance
with Rule 172 under the Act or any similar rule) in connection with any sale
of
Shares; and to provide you, for your review and comment, with a copy of such
reports and statements and other documents to be filed by the Company pursuant
to Section 13, 14 or 15(d) of the Exchange Act during such period a reasonable
amount of time prior to any proposed filing, and to promptly notify you of
such
filing;
(f) if
necessary or appropriate, to file a registration statement pursuant to, and
in
accordance with, Rule 462(b) under the Act and pay the applicable fees in
accordance with the Act;
(g) to
advise
the Underwriters promptly of the happening of any event within the period
during
which a prospectus is required by the Act to be delivered (whether physically
or
through compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Shares, which event could require the making
of any
change in the Prospectus then being used so that the Prospectus would not
include an untrue statement of material fact or omit to state a material
fact
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading, and, during such
time,
subject to Section 5(d)
hereof,
to prepare and furnish, at the Company’s expense, to the Underwriters promptly
such amendments or
-21-
supplements
to such Prospectus as may be necessary to reflect any such change;
(h) to
make
generally available to its security holders, and to deliver to you, an earnings
statement of the Company (which will satisfy the provisions of Section 11(a)
of
the Act) covering a period of twelve months beginning with the first fiscal
quarter of the Company occurring after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably
practicable after the termination of such twelve-month period;
(i) to
furnish to you three copies of the Registration Statement, as initially filed
with the Commission, and of all amendments thereto (including all exhibits
thereto and documents incorporated by reference therein) and sufficient copies
of the foregoing (other than exhibits) for distribution of a copy to each
of the
other Underwriters;
(j) to
furnish to you as early as practicable prior to the time of purchase and
any
additional time of purchase, as the case may be, a copy of the latest available
unaudited interim and monthly consolidated financial statements, if any,
of the
Company and the Subsidiaries which have been read by the Company’s independent
registered public accountants, as stated in their letter to be furnished
pursuant to Section 9(c) hereof;
(k) to
comply
with Rule 433(g) under the Act;
(l) beginning
on the date hereof and ending on, and including, the date that is 60 days
after
the date hereof (the “Lock-Up
Period”),
without the prior written consent of the Managing Underwriters, not to (i)
sell,
offer to sell, contract or agree to sell, hypothecate, pledge, grant any
option
to purchase or otherwise dispose of or agree to dispose of, directly or
indirectly, or establish or increase a put equivalent position or liquidate
or
decrease a call equivalent position within the meaning of Section 16 of the
Exchange Act and the rules and regulations of the Commission promulgated
thereunder, with respect to, any Common Stock or securities convertible into
or
exchangeable or exercisable for Common Stock or warrants or other rights
to
purchase Common Stock or any other securities of the Company that are
substantially similar to Common Stock, (ii) file or cause to become effective
a
registration statement under the Act relating to the offer and sale of any
shares of Common Stock or securities convertible into or exercisable or
exchangeable for Common Stock or warrants or other rights to purchase Common
Stock or any other securities of the Company that are substantially similar
to
Common Stock, (iii) enter into any swap or other arrangement that transfers
to
another, in whole or in part, any of the economic consequences of ownership
of
Common Stock or any securities convertible into or exercisable or exchangeable
for Common Stock, or warrants or other rights to purchase Common Stock or
any
such securities, whether any such transaction is to be settled by delivery
of
Common Stock or such other securities, in cash or otherwise or (iv) publicly
announce an intention to effect any transaction specified in clause (i),
(ii) or
(iii), except, in each case, for (A) the registration of the offer and sale
of
the Shares as contemplated by this Agreement, (B) issuances of Common Stock
upon
the exercise of options or warrants disclosed as outstanding in the Registration
Statement (excluding the exhibits thereto), each Pre-Pricing Prospectus and
-22-
the
Prospectus, (C) the issuance of employee stock options not exercisable during
the Lock-Up Period, or restricted shares of Common Stock that are not
transferable by the recipient thereof during the Lock-Up Period, pursuant
to
compensation plans described in the Registration Statement (excluding the
exhibits thereto), each Pre-Pricing Prospectus and the Prospectus, and the
filing of a registration statement on Form S-8 with respect to any such plan,
(D) the issuance of shares of Common Stock pursuant to that certain Agreement
and Plan of Merger, dated August 23, 2005, between the Company and Spectrum
Organic Products, Inc., (E) the issuance of shares of Common Stock in connection
with the acquisition of any company or business, in an aggregate amount not
to
exceed 1% of the total shares of Common Stock outstanding on the date hereof,
so
long as the recipient of any such shares delivers a Lock-Up Agreement to
the
Managing Underwriters, duly executed by such recipient, substantially in
the
form set forth in Exhibit A hereto and (F) upon five business days advance
notice to the Managing Underwriters, the filing of a registration statement
on
Form S-3 covering up to 100,482 shares of Common Stock issued to Yeo Hiap
Seng
Limited and Yeo Hiap Seng (Malaysia) Berhad, so long as no sales of Common
Stock
are permitted to occur pursuant to such registration statement on Form S-3
during the Lock-Up Period and such restriction is disclosed in such registration
statement on Form S-3 and in any press release or Form 8-K issued or filed
by
the Company with respect thereto; provided,
however,
that if
(a) during the period that begins on the date that is fifteen (15) calendar
days
plus three (3) business days before the last day of the Lock-Up Period and
ends
on the last day of the Lock-Up Period, the Company issues an earnings release
or
material news or a material event relating to the Company occurs; or (b)
prior
to the expiration of the Lock-Up Period, the Company announces that it will
release earnings results during the sixteen (16) day period beginning on
the
last day of the Lock-Up Period, then the restrictions imposed by this Section
5(l)
shall
continue to apply until the expiration of the date that is fifteen (15) calendar
days plus three (3) business days after the date on which the issuance of
the
earnings release or the material news or material event occurs; provided
further,
however,
that
the immediately preceding proviso shall not apply if (i) the safe harbor
provided by Rule 139 under the Act is available in the manner contemplated
by
Rule 2711(f)(4) of the NASD and (ii) within the 3 business days preceding
the
15th calendar day before the last day of the Lock-Up Period, the Company
delivers to the Managing Underwriters a certificate, signed by the Chief
Financial Officer or Chief Executive Officer of the Company, certifying on
behalf of the Company that the Company’s shares of Common Stock are “actively
traded securities” within the meaning of Rule 2711(f)(4) of the
NASD.
(m) prior
to
the time of purchase or any additional time of purchase, as the case may
be, to
issue no press release or other communication directly or indirectly and
hold no
press conferences with respect to the Company or any Subsidiary, the financial
condition, results of operations, business, properties, assets, or liabilities
of the Company or any Subsidiary, or the offering of the Shares, without
advising you thereof at least two business days in advance or, if not
practicable, as far in advance as practicable (it being agreed by the
Underwriters
to keep
the fact of any such proposed press release, press conference, or other
communication and, in each case, the substance thereof, confidential until
the
public release of such information by the Company);
-23-
(n) not,
at
any time at or after the execution of this Agreement, to offer to sell any
Shares by means of any “prospectus” (within the meaning of the Act), or use any
“prospectus” (within the meaning of the Act) in connection with the offer or
sale of the Shares, in each case other than the Prospectus;
(o) not,
and
will cause its Subsidiaries not to, take, directly or indirectly, any action
designed, or which will constitute, or has constituted, or might reasonably
be
expected to cause or result in the stabilization or manipulation of the price
of
any security of the Company to facilitate the sale or resale of the
Shares;
(p) to
use
its commercially reasonable efforts to cause the Common Stock to be listed
for
quotation on the NASDAQ and to maintain such listing; and
(q) to
maintain a transfer agent and, if necessary under the jurisdiction of
incorporation of the Company, a registrar for the Common Stock.
6. Certain
Covenants of the Selling Stockholder.
The
Selling Stockholder hereby agrees:
(a) not,
during the Lock-Up Period, to offer or sell any Shares by means of any
“prospectus” (within the meaning of the Act), or use any “prospectus” (within
the meaning of the Act) in connection with the offer or sale of the Shares,
in
each case other than the Prospectus;
(b) not
to
take, directly or indirectly, any action designed to, or which will constitute,
or has constituted, or would reasonably be expected to cause or result in
the
stabilization or manipulation of the price of the Shares in violation of
Regulation M under the Act;
(c) to
pay or
cause to be paid all taxes, if any, on the transfer and sale of the
Shares;
(d) during
the Lock-Up Period, without the prior written consent of the Managing
Underwriters, not to (i) sell, offer to sell, contract or agree to sell,
hypothecate, pledge, grant any option to purchase or otherwise dispose of
or
agree to dispose of, directly or indirectly, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position within
the meaning of Section 16 of the Exchange Act and the rules and regulations
of
the Commission promulgated thereunder, with respect to, any Common Stock
or
securities convertible into or exchangeable or exercisable for Common Stock
or
warrants or other rights to purchase Common Stock, (ii) make any demand for,
or
exercise any right with respect to, the registration of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock,
or
warrants or other rights to purchase Common Stock or any such securities,
(iii)
enter into any swap or other arrangement that transfers to another, in whole
or
in part, any of the economic consequences of ownership of Common Stock or
any
securities convertible
-24-
into
or
exercisable or exchangeable for Common Stock, or warrants or other rights
to
purchase Common Stock or any such securities, whether any such transaction
is to
be settled by delivery of Common Stock or such other securities, in cash
or
otherwise or (iv) publicly announce an intention to effect any transaction
specified in clause (i), (ii) or (iii), except, in each case, for transactions
involving the offer and sale of the Firm Shares and Additional Shares as
contemplated by this Agreement; provided,
however,
that if
(a) during the period that begins on the date that is fifteen (15) calendar
days
plus three (3) business days before the last day of the Lock-Up Period and
ends
on the last day of the Lock-Up Period, the Company issues an earnings release
or
material news or a material event relating to the Company occurs; or (b)
prior
to the expiration of the Lock-Up Period, the Company announces that it will
release earnings results during the sixteen (16) day period beginning on
the
last day of the Lock-Up Period, then the restrictions imposed by this Section
shall continue to apply until the expiration of the date that is fifteen
(15)
calendar days plus three (3) business days after the date on which the issuance
of the earnings release or the material news or material event occurs;
provided
further,
however,
that
the immediately preceding proviso shall not apply if (i) the safe harbor
provided by Rule 139 under the Act is available in the manner contemplated
by
Rule 2711(f)(4) of the NASD and (ii) within the 3 business days preceding
the
15th calendar day before the last day of the Lock-Up Period, the Company
delivers to the Managing Underwriters a certificate, signed by the Chief
Financial Officer or Chief Executive Officer of the Company, certifying on
behalf of the Company that the Company’s shares of Common Stock are “actively
traded securities” within the meaning of Rule 2711(f)(4) of the NASD;
and
(f) prior
to
or concurrently with the execution and delivery of this Agreement, to execute
and deliver to the Underwriters the Custody Agreement.
7. Covenant
to Pay Costs.
(a)
Without prejudice to any agreement between the Company and the Selling
Stockholder relating to their obligations to one another for the payment
of
costs, expenses, fees and taxes in connection with the matters contemplated
hereby, the Company and the Selling Stockholder agree to pay all costs,
expenses, fees and taxes in connection with (i) the preparation and filing
of
the Registration Statement, each Basic Prospectus, each Pre-Pricing Prospectus,
the Prospectus Supplement, the Prospectus, each Permitted Free Writing
Prospectus and any amendments or supplements thereto, and the printing and
furnishing of copies of each thereof to the Underwriters and to dealers
(including costs of mailing and shipment), (ii) the registration, issue,
sale
and delivery of the Shares including any stock or transfer taxes and stamp
or
similar duties payable upon the sale, issuance or delivery of the Shares
to the
Underwriters, (iii) the producing, word processing and/or printing of this
Agreement, any Agreement Among Underwriters, any dealer agreements, any Custody
Agreements and any closing documents (including compilations thereof) and
the
reproduction and/or printing and furnishing of copies of each thereof to
the
Underwriters and (except closing documents) to dealers (including costs of
mailing and shipment), (iv) the qualification of the Shares for offering
and
sale under state or foreign laws and the determination of their eligibility
for
investment under state or foreign law (including the legal fees and filing
fees
and other disbursements of counsel for the Underwriters) and the printing
and
furnishing of copies of any blue sky surveys or legal investment surveys
to the
Underwriters and to dealers, (v) any listing of
-25-
the
Shares on any securities exchange or qualification of the Shares for quotation
on the NASDAQ and any registration thereof under the Exchange Act, (vi) any
filing for review of the public offering of the Shares by the NASD, including
the legal fees and filing fees and other disbursements of counsel to the
Underwriters relating to NASD matters, (vii) the fees and disbursements of
any
transfer agent or registrar for the Shares, (viii) the costs and expenses
of the
Company and the Selling Stockholder relating to presentations or meetings
undertaken in connection with the marketing of the offering and sale of the
Shares to prospective investors and the Underwriters’ sales forces, including,
without limitation, expenses associated with the production of road show
slides
and graphics, fees and expenses of any consultants engaged in connection
with
the road show presentations, travel, lodging and other expenses incurred
by the
officers of the Company or by the Selling Stockholder and any such consultants,
and the cost of any aircraft chartered in connection with the road show,
and
(ix)
the
performance of the Company’s and the Selling Stockholder’s other obligations
hereunder.
(b) The
Underwriters agree to reimburse the Selling Stockholder for up to $700,000
of
its expenses in connection with the transactions contemplated hereby (including
any such expenses of the Company that the Selling Stockholder has agreed
to
reimburse the Company, as described in the Pre-Pricing Prospectus and the
Prospectus).
8. Reimbursement
of Underwriters’ Expenses.
Without
prejudice to any agreement between the Company and the Selling Stockholder
relating to their obligations to one another for the payment of costs, expenses,
fees and taxes in connection with the matters contemplated hereby, if the
Shares
are not delivered for any reason other than the termination of this Agreement
pursuant to the fifth paragraph of Section 11
hereof
or the default by one or more of the Underwriters in its or their respective
obligations hereunder, the Company and the Selling Stockholder shall, in
addition to paying the amounts described in Section 7
hereof,
reimburse the Underwriters for all of their out-of-pocket expenses, including
the fees and disbursements of their counsel.
9. Conditions
of Underwriters’ Obligations.
The
several obligations of the Underwriters hereunder are subject to the accuracy
of
the respective representations and warranties on the part of the Company
and the
Selling Stockholder on the date hereof, at the time of purchase and, if
applicable, at the additional time of purchase, the performance by the Company
and the Selling Stockholder of each of their respective obligations hereunder
and to the following additional conditions precedent:
(a) The
Company shall furnish to you at the time of purchase and, if applicable,
at the
additional time of purchase, an opinion of Cahill Gordon & Reindel LLP,
counsel for the Company, addressed to the Underwriters, and dated the time
of
purchase or the additional time of purchase, as the case may be, with executed
copies for each of the other Underwriters, and in form and substance
satisfactory to the Managing Underwriters, in the form set forth in Exhibit
B
hereto.
(b) The
Selling Stockholder shall furnish to you at the time of purchase and, if
applicable, at the additional time of purchase, an opinion of Theodore N.
Bobby,
Esq., Senior Vice President and General Counsel for the Selling Stockholder,
addressed to the
-26-
Managing
Underwriters, and dated the time of purchase or the additional time of purchase,
as the case may be, with executed copies for each of the other Underwriters,
and
in form and substance satisfactory to the Managing Underwriters, in the form
set
forth in Exhibit
C
hereto.
(c) You
shall
have received from Ernst & Young LLP letters dated, respectively, the date
of this Agreement, the time of purchase and, if applicable, the additional
time
of purchase, and addressed to the Underwriters (with executed copies for
each of
the Underwriters) in the forms approved by the Managing Underwriters, which
letters shall cover, without limitation, the various financial disclosures,
if
any, contained in the Permitted Free Writing Prospectuses, if any.
(d) You
shall
have received at the time of purchase and, if applicable, at the additional
time
of purchase, the favorable opinion of Davis Polk & Wardwell, counsel for the
Underwriters, dated the time of purchase or the additional time of purchase,
as
the case may be, in form and substance reasonably satisfactory to the Managing
Underwriters.
(e) No
Prospectus or amendment or supplement to the Registration Statement or the
Prospectus shall have been filed to which you shall have objected in
writing.
(f) The
Registration Statement and any registration statement required to be filed,
prior to the sale of the Shares, under the Act pursuant to Rule 462(b) shall
have been filed and shall have become effective under the Act. The Prospectus
Supplement shall have been filed with the Commission pursuant to Rule 424(b)
under the Act at or before 5:30 P.M., New York City time, on the second full
business day after the date of this Agreement (or such earlier time as may
be
required under the Act).
(g) Prior
to
the time of purchase, and, if applicable, the additional time of purchase,
(i)
no stop order with respect to the effectiveness of the Registration Statement
shall have been issued under the Act or proceedings initiated under Section
8(d)
or 8(e) of the Act; (ii) the Registration Statement and all amendments thereto
shall not contain an untrue statement of a material fact or omit to state
a
material fact required to be stated therein or necessary to make the statements
therein not misleading; (iii) none of the Pre-Pricing Prospectuses or the
Prospectus, and no amendment or supplement thereto, shall include an untrue
statement of a material fact or omit to state a material fact necessary in
order
to make the statements therein, in the light of the circumstances under which
they are made, not misleading; (iv) no Disclosure Package, and no amendment
or
supplement thereto, shall include an untrue statement of a material fact
or omit
to state a material fact necessary in order to make the statements therein,
in
the light of the circumstances under which they are made, not misleading;
and
(v) none of the Permitted Free Writing Prospectuses, if any, shall include
an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under
which they are made, not misleading.
(h) The
Company will, at the time of purchase and, if applicable, at the
-27-
additional
time of purchase, deliver to you a certificate of its Chief Executive Officer
and its Chief Financial Officer, dated the time of purchase or the additional
time of purchase, as the case may be, in the form attached as Exhibit
D
hereto.
(i) The
Selling Stockholder will, at the time of purchase and, if applicable, at
the
additional time of purchase, deliver to you a certificate signed by the Selling
Stockholder, dated the time of purchase or the additional time of purchase,
as
the case may be, in the form attached as Exhibit
E
hereto.
(j) You
shall
have received each of the signed Lock-Up Agreements referred to in Section
3(u)
hereof,
and each such Lock-Up Agreement shall be in full force and effect at the
time of
purchase and the additional time of purchase, as the case may be.
(k) The
Company and the Selling Stockholder shall have furnished to you such other
documents and certificates as to the accuracy and completeness of any statement
in the Registration Statement, any Pre-Pricing Prospectus, the Prospectus
or any
Permitted Free Writing Prospectus as of the time of purchase and, if applicable,
the additional time of purchase, as you may reasonably request.
(l) The
Shares shall have been approved for quotation on the NASDAQ, subject only
to
notice of issuance at or prior to the time of purchase or the additional
time of
purchase, as the case may be.
(m) The
NASD
shall not have raised any objection with respect to the fairness or
reasonableness of the underwriting, or other arrangements of the transactions,
contemplated hereby.
(n)
The
Selling Stockholder shall have delivered to you a duly executed copy of
the
Custody Agreement
in form and substance satisfactory to the Managing Underwriters.
in form and substance satisfactory to the Managing Underwriters.
10. Effective
Date of Agreement; Termination.
This
Agreement shall become effective when the parties hereto have executed and
delivered this Agreement.
The
obligations of the several Underwriters hereunder shall be subject to
termination in the absolute discretion of the Managing Underwriters, if (1)
since the time of execution of this Agreement or the earlier respective dates
as
of which information is given in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses,
if
any, there has been any material adverse change or any development involving
a
prospective material adverse change in the business, properties, management,
financial condition or results of operations of the Company and the Subsidiaries
taken as a whole, which would, in the sole judgment of the Managing
Underwriters, make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares on the terms and in the manner
contemplated in the Registration Statement, the Pre-Pricing Prospectuses,
the
Prospectus and the Permitted Free Writing Prospectuses, if any, or (2) since
the
time of execution of this Agreement, there shall have occurred: (A) a suspension
or material limitation in
-28-
trading
in securities generally on the New York Stock Exchange, the American Stock
Exchange or the NASDAQ; (B) a suspension or material limitation in trading
in
the Company’s securities on the NASDAQ; (C) a general moratorium on commercial
banking activities declared by either federal or New York State authorities
or a
material disruption in commercial banking or securities settlement or clearance
services in the United States; (D) an outbreak or escalation of hostilities
or
acts of terrorism involving the United States or a declaration by the United
States of a national emergency or war; or (E) any other calamity or crisis
or
any change in financial, political or economic conditions in the United States
or elsewhere, if the effect of any such event specified in clause (D) or
(E), in
the sole judgment of the Managing Underwriters, makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares
on
the terms and in the manner contemplated in the Registration Statement, the
Pre-Pricing Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, or (3) since the time of execution of this Agreement,
there shall have occurred any downgrading, or any notice or announcement
shall
have been given or made of: (A) any intended or potential downgrading or
(B) any
watch, review or possible change that does not indicate an affirmation or
improvement in the rating accorded any securities of or guaranteed by the
Company or any Subsidiary by any “nationally recognized statistical rating
organization,” as that term is defined in Rule 436(g)(2) under the
Act.
If
the
Managing Underwriters elect to terminate this Agreement as provided in this
Section 10,
the
Company, the Selling Stockholder and each other Underwriter shall be notified
promptly in writing.
If
the
sale to the Underwriters of the Shares, as contemplated by this Agreement,
is
not carried out by the Underwriters for any reason permitted under this
Agreement, or if such sale is not carried out because the Company or the
Selling
Stockholder, as the case may be, shall be unable to comply with any of the
terms
of this Agreement, the Company and the Selling Stockholder shall not be under
any obligation or liability under this Agreement (except to the extent provided
in Sections 7,
8
and
12
hereof),
and the Underwriters shall be under no obligation or liability to the Company
or
the Selling Stockholder under this Agreement (except to the extent provided
in
Section 12
hereof)
or to one another hereunder.
11. Increase
in Underwriters’ Commitments.
Subject
to Sections 9
and
10
hereof,
if any Underwriter shall default in its obligation to take up and pay for
the
Firm Shares to be purchased by it hereunder (otherwise than for a failure
of a
condition set forth in Section 9
hereof
or a reason sufficient to justify the termination of this Agreement under
the
provisions of Section 10
hereof)
and if the number of Firm Shares which all Underwriters so defaulting shall
have
agreed but failed to take up and pay for does not exceed 10% of the total
number
of Firm Shares, the non-defaulting Underwriters (including the Underwriters,
if
any, substituted in the manner set forth below) shall take up and pay for
(in
addition to the aggregate number of Firm Shares they are obligated to purchase
pursuant to Section 1
hereof)
the number of Firm Shares agreed to be purchased by all such defaulting
Underwriters, as hereinafter provided. Such Shares shall be taken up and
paid
for by such non-defaulting Underwriters in such amount or amounts as you
may
designate with the consent of each Underwriter so designated or, in the event
no
such designation is made, such Shares shall be taken up and paid for by all
non-defaulting Underwriters pro rata in proportion to the aggregate number
of
Firm Shares set forth opposite the
-29-
names
of
such non-defaulting Underwriters in Schedule
A.
Without
relieving any defaulting Underwriter from its obligations hereunder, the
Selling
Stockholder agrees with the non-defaulting Underwriters that it will not
sell
any Firm Shares hereunder unless all of the Firm Shares are purchased by
the
Underwriters (or by substituted Underwriters selected by you with the approval
of the Company or selected by the Company with your approval).
If
a new
Underwriter or Underwriters are substituted by the Underwriters or by the
Company for a defaulting Underwriter or Underwriters in accordance with the
foregoing provision, the Company or you shall have the right to postpone
the
time of purchase for a period not exceeding five business days in order that
any
necessary changes in the Registration Statement and the Prospectus and other
documents may be effected.
The
term
“Underwriter” as used in this Agreement shall refer to and include any
Underwriter substituted under this Section 11
with
like effect as if such substituted Underwriter had originally been named
in
Schedule
A
hereto.
If
the
aggregate number of Firm Shares which the defaulting Underwriter or Underwriters
agreed to purchase exceeds 10% of the total number of Firm Shares which all
Underwriters agreed to purchase hereunder, and if neither the non-defaulting
Underwriters nor the Company shall make arrangements within the five business
day period stated above for the purchase of all the Firm Shares which the
defaulting Underwriter or Underwriters agreed to purchase hereunder, this
Agreement shall terminate without further act or deed and without any liability
on the part of the Company or the Selling Stockholder (except to the extent
provided in Sections 7
and
12
hereof)
to any Underwriter and without any liability on the part of any non-defaulting
Underwriter to the Company or to the Selling Stockholder. Nothing in this
paragraph, and no action taken hereunder, shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter
under
this Agreement.
12. Indemnity
and Contribution.
(a) The
Company agrees to indemnify, defend and hold harmless each Underwriter, its
partners, directors and officers, and any person who controls any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act,
and the successors and assigns of all of the foregoing persons, from and
against
any loss, damage, expense, liability or claim (including the reasonable cost
of
investigation) which, jointly or severally, any such Underwriter or any such
person may incur under the Act, the Exchange Act, the common law or otherwise,
insofar as such loss, damage, expense, liability or claim arises out of or
is
based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or in the Registration Statement
as amended by any post-effective amendment thereof by the Company) or arises
out
of or is based upon any omission or alleged omission to state a material
fact
required to be stated therein or necessary to make the statements therein
not
misleading, except insofar as any such loss, damage, expense, liability or
claim
arises out of or is based upon any untrue statement or alleged untrue statement
of a material fact
-30-
contained
in, and in conformity with information concerning such Underwriter furnished
in
writing by or on behalf of such Underwriter through you to the Company expressly
for use in, the Registration Statement or arises out of or is based upon
any
omission or alleged omission to state a material fact in the Registration
Statement in connection with such information, which material fact was not
contained in such information and which material fact was required to be
stated
in such Registration Statement or was necessary to make such information
not
misleading or (ii) any untrue statement or alleged untrue statement of a
material fact included in any Prospectus (the term Prospectus for the purpose
of
this Section 12
being
deemed to include any Basic Prospectus, any Pre-Pricing Prospectus, the
Prospectus Supplement, the Prospectus and any amendments or supplements to
the
foregoing), in any Permitted Free Writing Prospectus, in any “issuer
information” (as defined in Rule 433 under the Act) of the Company or in any
Prospectus together with any combination of one or more of the Permitted
Free
Writing Prospectuses, if any, or arises out of or is based upon any omission
or
alleged omission to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except, with respect to such Prospectus or Permitted
Free
Writing Prospectus, insofar as any such loss, damage, expense, liability
or
claim arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in, and in conformity with information
concerning such Underwriter furnished in writing by or on behalf of such
Underwriter through you to the Company expressly for use in, such Prospectus
or
Permitted Free Writing Prospectus or arises
out of or is based upon any omission or alleged omission to state a material
fact in such Prospectus or Permitted Free Writing Prospectus in connection
with
such information, which material fact was not contained in such information
and
which material fact was necessary in order to make the statements in such
information, in the light of the circumstances under which they were made,
not
misleading.
(b) The
Selling Stockholder agrees to indemnify, defend and hold harmless the Company,
its directors and officers who sign the Registration Statement and each
Underwriter, its partners, directors and officers, and any person who controls
any Underwriter within the meaning of Section 15 of the Act or Section 20
of the
Exchange Act, and the successors and assigns of all of the foregoing persons,
from and against any loss, damage, expense, liability or claim (including
the
reasonable cost of investigation) which, jointly or severally, any such
Underwriter or any such person may incur under the Act, the Exchange Act,
the
common law or otherwise, insofar as such loss, damage, expense, liability
or
claim arises out of or is based upon (i) any untrue statement or alleged
untrue
statement of a material fact contained in the Registration Statement (or
in the
Registration Statement as amended by any post-effective amendment thereof
by the
Company), as such Registration Statement relates to the Selling Stockholder,
or
arises out of or is based upon any omission or alleged omission to state
a
material fact required to be stated therein relating to the Selling Stockholder
or necessary to make the statements therein relating to the Selling Stockholder
not misleading or (ii) any untrue statement or alleged untrue statement of
a
material fact included in any Prospectus, in any Permitted Free Writing
Prospectus or in any Prospectus together with any combination of one or more
of
the Permitted Free Writing Prospectuses, if any, or arises out of or is based
upon
-31-
any
omission or alleged omission to state a material fact necessary in order
to make
the statements therein, in the light of the circumstances under which they
were
made, not misleading,
but
only insofar as such loss, damage, expense, liability or claim arises out
of, or
is based upon, any untrue statement or omission or alleged untrue statement
or
omission made in reliance upon and in conformity with information relating
to
the Selling Stockholder furnished to the Company in writing by the Selling
Stockholder expressly for use therein, it being understood and agreed that
the
only such information furnished by the Selling Stockholder consists of such
information contained in the Pre-Pricing Prospectus, the Prospectus and the
Registration Statement under the captions “Selling Stockholder” (except for the
dollar amounts of transactions described under “—Transactions between Heinz and
us in the last three years,” inasmuch as such amounts are not separately tracked
in the accounting systems of the Selling Stockholder and its affiliates),
“Underwriting,” “Plan of Distribution,” “Item 14.
- Other
Expenses of Issuance and Distribution,” and the statements in the revised
definitive proxy statement on Schedule 14A filed with the Commission on October
31, 2005 under the caption “Certain Relationships” (except as aforesaid with
respect to the dollar amounts of transactions described in the third paragraph
thereunder) relating to the Selling Stockholder.
(c) Each
Underwriter severally agrees to indemnify, defend and hold harmless the Company,
its directors, officers, employees and agents, the Selling Stockholder and
any
person who controls the Company within the meaning of Section 15 of the Act
or
Section 20 of the Exchange Act, and the successors and assigns of all of
the
foregoing persons, from and against any loss, damage, expense, liability
or
claim (including the reasonable cost of investigation) which, jointly or
severally, the Company, the Selling Stockholder or any such person may incur
under the Act, the Exchange Act, the common law or otherwise, insofar as
such
loss, damage, expense, liability or claim arises out of or is based upon
(i) any
untrue statement or alleged untrue statement of a material fact contained
in,
and in conformity with information concerning such Underwriter furnished
in
writing by or on behalf of such Underwriter through you to the Company expressly
for use in, the Registration Statement (or in the Registration Statement
as
amended by any post-effective amendment thereof by the Company), or arises
out
of or is based upon any omission or alleged omission to state a material
fact in
such Registration Statement in connection with such information, which material
fact was not contained in such information and which material fact was required
to be stated in such Registration Statement or was necessary to make such
information not misleading or (ii) any untrue statement or alleged untrue
statement of a material fact contained in, and in conformity with information
concerning such Underwriter furnished in writing by or on behalf of such
Underwriter through you to the Company expressly for use in, a Prospectus
or a
Permitted Free Writing Prospectus, or arises out of or is based upon any
omission or alleged omission to state a material fact in such Prospectus
or
Permitted Free Writing Prospectus in connection with such information, which
material fact was not contained in such information and which material fact
was
necessary in order to make the statements in such information, in the light
of
the circumstances under which they were made, not misleading.
-32-
(d) If
any
action, suit or proceeding (each, a “Proceeding”)
is
brought against a person (an “indemnified
party”)
in
respect of which indemnity may be sought against the Company, the Selling
Stockholder or an Underwriter (as applicable, the “indemnifying
party”)
pursuant to subsection (a),
(b)
or
(c),
respectively, of this Section 12,
such
indemnified party shall promptly notify such indemnifying party in writing
of
the institution of such Proceeding and such indemnifying party shall assume
the
defense of such Proceeding, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and expenses;
provided,
however,
that
the omission to so notify such indemnifying party shall not relieve such
indemnifying party from any liability which such indemnifying party may have
to
any indemnified party or otherwise. The indemnified party or parties shall
have
the right to employ its or their own counsel in any such case, but the fees
and
expenses of such counsel shall be at the expense of such indemnified party
or
parties unless the employment of such counsel shall have been authorized
in
writing by the indemnifying party in connection with the defense of such
Proceeding or the indemnifying party shall not have, within a reasonable
period
of time in light of the circumstances, employed counsel to defend such
Proceeding or such indemnified party or parties shall have reasonably concluded
that there may be defenses available to it or them which are different from,
additional to or in conflict with those available to such indemnifying party
(in
which case such indemnifying party shall not have the right to direct the
defense of such Proceeding on behalf of the indemnified party or parties),
in
any of which events such fees and expenses shall be borne by such indemnifying
party and paid as incurred (it being understood, however, that such indemnifying
party shall not be liable for the expenses of more than one separate counsel
(in
addition to any local counsel) in any one Proceeding or series of related
Proceedings in the same jurisdiction representing the indemnified parties
who
are parties to such Proceeding). The indemnifying party shall not be liable
for
any settlement of any Proceeding effected without its written consent but,
if
settled with its written consent, such indemnifying party agrees to indemnify
and hold harmless the indemnified party or parties from and against any loss
or
liability by reason of such settlement. Notwithstanding the foregoing sentence,
if at any time an indemnified party shall have requested an indemnifying
party
to reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second sentence of this Section 12(d),
then
the indemnifying party agrees that it shall be liable for any settlement
of any
Proceeding effected without its written consent if (i) such settlement is
entered into more than 60 business days after receipt by such indemnifying
party
of the aforesaid request, (ii) such indemnifying party shall not have fully
reimbursed the indemnified party in accordance with such request prior to
the
date of such settlement and (iii) such indemnified party shall have given
the
indemnifying party at least 30 days’ prior notice of its intention to settle. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened Proceeding in respect
of which any indemnified party is or could have been a party and indemnity
could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such Proceeding and does not include
an
admission of fault or culpability or a failure to act by or on behalf of
such
indemnified party.
-33-
(e) If
the
indemnification provided for in this Section 12
is
unavailable to an indemnified party under subsections (a),
(b)
and
(c)
of this
Section 12
or
insufficient to hold an indemnified party harmless in respect of any losses,
damages, expenses, liabilities or claims referred to therein, then each
applicable indemnifying party shall contribute to the amount paid or payable
by
such indemnified party as a result of such losses, damages, expenses,
liabilities or claims (i) in such proportion as is appropriate to reflect
the
relative benefits received by the Company and the Selling Stockholder on
the one
hand and the Underwriters on the other hand from the offering of the Shares
or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
the
relative benefits referred to in clause (i) above but also the relative fault
of
the Company and the Selling Stockholder on the one hand and of the Underwriters
on the other in connection with the statements or omissions which resulted
in
such losses, damages, expenses, liabilities or claims, as well as any other
relevant equitable considerations. The relative benefits received by the
Company
and the Selling Stockholder on the one hand and the Underwriters on the other
shall be deemed to be in the same respective proportions as the total proceeds
from the offering (net of underwriting discounts and commissions but before
deducting expenses) received by the Selling Stockholder, and the total
underwriting discounts and commissions received by the Underwriters, bear
to the
aggregate public offering price of the Shares. The relative fault of the
Company
and the Selling Stockholder on the one hand and of the Underwriters on the
other
shall be determined by reference to, among other things, whether the untrue
statement or alleged untrue statement of a material fact or omission or alleged
omission relates to information supplied by the Company or the Selling
Stockholder or by the Underwriters and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or
omission. The amount paid or payable by a party as a result of the losses,
damages, expenses, liabilities and claims referred to in this subsection
shall
be deemed to include any legal or other fees or expenses reasonably incurred
by
such party in connection with investigating, preparing to defend or defending
any Proceeding.
The
provisions of this subsection (e) are without prejudice to any agreement
between
the Company and the Selling Stockholder with respect to their obligations
to one
another.
(f) The
Company, the Selling Stockholder and the Underwriters agree that it would
not be
just and equitable if contribution pursuant to this Section 12
were
determined by pro rata allocation (even if the Underwriters were treated
as one
entity for such purpose) or by any other method of allocation that does not
take
account of the equitable considerations referred to in subsection (e)
above.
Notwithstanding the provisions of this Section 12,
no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Shares underwritten by such Underwriter
and distributed to the public were offered to the public exceeds the amount
of
any damage which such Underwriter has otherwise been required to pay by reason
of such untrue statement or alleged untrue statement or omission or alleged
omission.
No
person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of
the Act) shall be entitled to contribution from any person who was not guilty
of
such fraudulent misrepresentation. The Underwriters’ obligations to contribute
pursuant to this Section 12
are
several in proportion to their respective underwriting commitments
-34-
and
not
joint.
(g) The
indemnity and contribution agreements contained in this Section 12
and the
covenants, warranties and representations of the Company and the Selling
Stockholder contained in this Agreement shall remain in full force and effect
regardless of any investigation made by or on behalf of any Underwriter,
its
partners, directors or officers or any person (including each partner, officer
or director of such person) who controls any Underwriter within the meaning
of
Section 15 of the Act or Section 20 of the Exchange Act, or by or on behalf
of
the Company or the Selling Stockholder, their respective directors or officers
or any person who controls the Company or the Selling Stockholder within
the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and shall
survive any termination of this Agreement or the issuance and delivery of
the
Shares. The Company, the Selling Stockholder and each Underwriter agree promptly
to notify each other of the commencement of any Proceeding against it and,
in
the case of the Company or the Selling Stockholder, against any of their
officers or directors in connection with the issuance and sale of the Shares,
or
in connection with the Registration Statement, any Pre-Pricing Prospectus,
the
Prospectus or any Permitted Free Writing Prospectus.
13. Information
Furnished by the Underwriters.
The
statements set forth under the captions “Underwriting—Commissions and discounts”
and “Underwriting—Price stabilization, short positions, passive market making”
in the Prospectus, only insofar as such statements relate to the amount of
selling concession and reallowance or to over-allotment and stabilization
activities that may be undertaken by the Underwriters, constitute the only
information furnished by or on behalf of the Underwriters, as such information
is referred to in Sections 3
and
12
hereof.
14. Notices.
Except
as otherwise herein provided, all statements, requests, notices and agreements
shall be in writing or by telegram or facsimile and, if to the Underwriters,
shall be sufficient in all respects if delivered or sent to UBS Securities
LLC,
299 Park Avenue, New York, NY 10171-0026, Attention: Syndicate Department,
if to
the Company, shall be sufficient in all respects if delivered or sent to
the
Company at the offices of the Company at 58 South Service Road, Melville,
NY
11747, Attention: Irwin D. Simon, Chairman of the Board, President and Chief
Executive Officer, and, if to the Selling Stockholder, shall be sufficient
in
all respects if delivered or sent to the Selling Stockholder at USX Tower,
600
Grant St., 60th
Floor,
Pittsburgh, PA 15219 (facsimile: 412-456-6102), Attention: General
Counsel.
15. Governing
Law; Construction.
This
Agreement and any claim, counterclaim or dispute of any kind or nature
whatsoever arising out of or in any way relating to this Agreement
(“Claim”),
directly or indirectly, shall be governed by, and construed in accordance
with,
the laws of the State of New York. The section headings in this Agreement
have
been inserted as a matter of convenience of reference and are not a part
of this
Agreement.
16. Submission
to Jurisdiction.
Except
as set forth below, no Claim may be commenced, prosecuted or continued in
any
court other than the courts of the State of New York
-35-
located
in the City and County of New York or in the United States District Court
for
the Southern District of New York, which courts shall have jurisdiction over
the
adjudication of such matters, and the Company and the Selling Stockholder
each
consents to the jurisdiction of such courts and personal service with respect
thereto. Each Underwriter, the Company (on its behalf and, to the extent
permitted by applicable law, on behalf of its stockholders and affiliates)
and
the Selling Stockholder (on its behalf and, to the extent permitted by
applicable law, on behalf of its stockholders and affiliates) each waives
all
right to trial by jury in any action, proceeding or counterclaim (whether
based
upon contract, tort or otherwise) in any way arising out of or relating to
this
Agreement. The Company and the Selling Stockholder each agrees that a final
judgment in any such action, proceeding or counterclaim brought in any such
court shall be conclusive and binding upon the Company and the Selling
Stockholder and may be enforced in any other courts to the jurisdiction of
which
the Company or the Selling Stockholder is or may be subject, by suit upon
such
judgment.
17. Parties
at Interest.
The
Agreement herein set forth has been and is made solely for the benefit of
the
Underwriters, the Company and the Selling Stockholder and to the extent provided
in Section 12
hereof
the controlling persons, partners, directors and officers referred to in
such
Section, and their respective successors, assigns, heirs, personal
representatives and executors and administrators. No other person, partnership,
association or corporation (including a purchaser, as such purchaser, from
any
of the Underwriters) shall acquire or have any right under or by virtue of
this
Agreement.
18. No
Fiduciary Relationship.
The
Company and the Selling Stockholder each hereby acknowledges that the
Underwriters are acting solely as underwriters in connection with the purchase
and sale of the Company’s securities. The Company and the Selling Stockholder
each further acknowledges that the Underwriters are acting pursuant to a
contractual relationship created solely by this Agreement entered into on
an
arm’s length basis, and in no event do the parties intend that the Underwriters
act or be responsible as a fiduciary to the Company or the Selling Stockholder,
their respective management, stockholders or creditors or any other person
in
connection with any activity that the Underwriters may undertake or have
undertaken in furtherance of the purchase and sale of the Company’s securities,
either before or after the date hereof. The Underwriters hereby expressly
disclaim any fiduciary or similar obligations to the Company or the Selling
Stockholder, either in connection with the transactions contemplated by this
Agreement or any matters leading up to such transactions, and the Company
and
the Selling Stockholder each hereby confirms its understanding and agreement
to
that effect. The Company, the Selling Stockholder and the Underwriters agree
that they are each responsible for making their own independent judgments
with
respect to any such transactions and that any opinions or views expressed
by the
Underwriters to the Company or the Selling Stockholder regarding such
transactions, including, but not limited to, any opinions or views with respect
to the price or market for the Company’s securities, do not constitute advice or
recommendations to the Company or the Selling Stockholder. The Company and
the
Selling Stockholder each hereby waives and releases, to the fullest extent
permitted by law, any claims that the Company or the Selling Stockholder
may
have against the Underwriters with respect to any breach or alleged breach
of
any fiduciary or similar duty to the Company or the Selling Stockholder in
connection with the transactions contemplated by this Agreement or any matters
leading up to such transactions.
-36-
19. Counterparts.
This
Agreement may be signed by the parties in one or more counterparts which
together shall constitute one and the same agreement among the
parties.
20. Successors
and Assigns.
This
Agreement shall be binding upon the Underwriters, the Company and the Selling
Stockholder and their successors and assigns and any successor or assign
of any
substantial portion of the Company’s, the Selling Stockholder’s and any of the
Underwriters’ respective businesses and/or assets.
21. Miscellaneous.
UBS
Securities LLC, an indirect, wholly owned subsidiary of UBS AG, is not a
bank
and is separate from any affiliated bank, including any U.S. branch or agency
of
UBS AG. Because UBS Securities LLC, and each of the other Managing Underwriters,
is a separately incorporated entity, it is solely responsible for its own
contractual obligations and commitments, including obligations with respect
to
sales and purchases of securities. Securities sold, offered or recommended
by
UBS Securities LLC (or any other Underwriter) are not deposits, are not insured
by the Federal Deposit Insurance Corporation, are not guaranteed by a branch
or
agency, and are not otherwise an obligation or responsibility of a branch
or
agency.
[The
Remainder of This Page Intentionally Left Blank; Signature Page
Follows]
-37-
If
the
foregoing correctly sets forth the understanding among the Company, the Selling
Stockholder and the several Underwriters, please so indicate in the space
provided below for that purpose, whereupon this Agreement and your acceptance
shall constitute a binding agreement among the Company, the Selling Stockholder
and the Underwriters, severally.
Very
truly yours,
THE
HAIN
CELESTIAL GROUP, INC.
By:
/s/ Ira J. Lamel
Name:
Ira J. Lamel
Title:
Executive Vice President and
Chief Financial Officer
HJH
One,
L.L.C.
By:
/s/ Leonard A. Cullo, Jr.
Name:
Leonard A. Cullo, Jr.
Title:
Vice President
Accepted
and agreed to as of the date
first
above written, on behalf of
themselves
and the other several
Underwriters
named in Schedule A
UBS
Securities LLC
By:
/s/ Jonathan Tretler
Name:
Jonathan Tretler
Title:
Executive Director
By:
/s/
Rhodri Ferrier
Name:
Rhodri Ferrier
Title:
Associate Director
Banc of
America Securities
LLC
By:
/s/ Thomas M. Morrison
Name:
Thomas M. Morrison
Title:
Managing Director
J.P.
Morgan Securities Inc.
By:
/s/ Michael Ryan
Name:
Michael Ryan
Title:
Vice President
SCHEDULE
A
|
Underwriter
|
Number
of Firm Shares
|
|
|
UBS
SECURITIES LLC
|
1,853,585
|
|
|
BANC
OF AMERICA SECURITIES LLC
|
1,853,585
|
|
|
J.P.
MORGAN SECURITIES INC.
|
1,588,787
|
|
|
Total
|
5,295,957
|
SCHEDULE
B
PERMITTED
FREE WRITING PROSPECTUSES
None.
SCHEDULE
C
|
Offering
Price:
|
$20.00
per Share
|
EXHIBIT
A
Lock-Up
Agreement
December
__, 2005
UBS
Securities LLC
Banc
of
America Securities LLC
J.P.
Morgan Securities Inc.
as
Managing Underwriters
Together
with the other Underwriters
named
in
Schedule A to the Underwriting Agreement
referred
to herein
c/o
UBS
Securities LLC
299
Park
Avenue
New
York,
New York 10171-0026
Ladies
and Gentlemen:
This
Lock-Up Agreement is being delivered to you in connection with the proposed
Underwriting Agreement (the “Underwriting
Agreement”)
to be
entered into by The Hain Celestial Group, Inc., a Delaware corporation (the
“Company”),
the
Selling Stockholder named therein and you and the other underwriters named
in
Schedule A to the Underwriting Agreement, with respect to the public offering
(the “Offering”)
of
common stock, par value $.01 per share, of the Company (the “Common
Stock”).
In
order
to induce you to enter into the Underwriting Agreement, the undersigned agrees
that, for a period (the “Lock-Up
Period”)
beginning on the date hereof and ending on, and including, the date that
is 60
days after the date of the Underwriting Agreement, the undersigned will not,
without the prior written consent of the Managing Underwriters, (i) sell,
offer
to sell, contract or agree to sell, hypothecate, pledge, grant any option
to
purchase or otherwise dispose of or agree to dispose of, directly or indirectly,
or file (or participate in the filing of) a registration statement with the
Securities and Exchange Commission (the “Commission”)
in
respect of, or establish or increase a put equivalent position or liquidate
or
decrease a call equivalent position within the meaning of Section 16 of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
of
the Commission promulgated thereunder (the “Exchange
Act”)
with
respect to, any Common Stock or any securities convertible into or exercisable
or exchangeable for Common Stock, or warrants or other rights to purchase
Common
Stock or any such securities, (ii) enter into any swap or other arrangement
that
transfers to another, in whole or in part, any of the economic consequences
of
ownership of Common Stock or any securities convertible into or exercisable
or
exchangeable for Common Stock, or warrants or other rights to purchase Common
Stock or any such securities, whether any such transaction is to be settled
by
delivery of Common Stock or such other securities, in cash or otherwise or
(iii)
publicly announce an intention to effect any transaction specified in clause
(i)
or (ii). The
A-1
foregoing
sentence shall not apply to (a) bona fide gifts, provided the recipient thereof
agrees in writing with the Underwriters to be bound by the terms of this
Lock-Up
Agreement or (b) dispositions to any trust for the direct or indirect benefit
of
the undersigned and/or the immediate family of the undersigned, provided
that
such trust agrees in writing with the Underwriters to be bound by the terms
of
this Lock-Up Agreement. For purposes of this paragraph, “immediate family” shall
mean the undersigned and the spouse, any lineal descendent, father, mother,
brother or sister of the undersigned.
In
addition, the undersigned hereby waives any rights the undersigned may have
to
require registration of Common Stock in connection with the filing of a
registration statement relating to the Offering. The undersigned further
agrees
that, for the Lock-Up Period, the undersigned will not, without the prior
written consent of the Managing Underwriters, make any demand for, or exercise
any right with respect to, the registration of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock, or warrants
or
other rights to purchase Common Stock or any such securities.
Notwithstanding
the above, if (a) during the period that begins on the date that is fifteen
(15)
calendar days plus three (3) business days before the last day of the Lock-Up
Period and ends on the last day of the Lock-Up Period, the Company issues
an
earnings release or material news or a material event relating to the Company
occurs; or (b) prior to the expiration of the Lock-Up Period, the Company
announces that it will release earnings results during the sixteen (16) day
period beginning on the last day of the Lock-Up Period, then the restrictions
imposed by this Lock-Up Agreement shall continue to apply until the expiration
of the date that is fifteen (15) calendar days plus three (3) business days
after the date on which the issuance of the earnings release or the material
news or material event occurs; provided,
however,
that
this paragraph shall not apply if (i) the safe harbor provided by Rule 139
under
the Securities Act of 1933, as amended, is available in the manner contemplated
by Rule 2711(f)(4) of the National Association of Securities Dealers, Inc.
(the
“NASD”);
and
(ii) within the 3 business days preceding the 15th calendar day before the
last
day of the Lock-Up Period, the Company delivers (in accordance with the notice
provisions of the Underwriting Agreement) to the Managing Underwriters a
certificate, signed by the Chief Financial Officer or Chief Executive Officer
of
the Company, certifying on behalf of the Company that the Company’s shares of
Common Stock are “actively traded securities,” within the meaning of Rule
2711(f)(4) of the NASD.
The
undersigned hereby confirms that the undersigned has not, directly or
indirectly, taken, and hereby covenants that the undersigned will not, directly
or indirectly, take, any action designed, or which has constituted or will
constitute or might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of the Company
to
facilitate the sale or resale of shares of Common Stock.
*
* *
A-2
If
(i)
the Company notifies you in writing that it does not intend to proceed with
the
Offering, (ii) the registration statement filed with the Commission with
respect
to the Offering is withdrawn or (iii) for any reason the Underwriting Agreement
shall be terminated prior to the “time of purchase” (as defined in the
Underwriting Agreement), this Lock-Up Agreement shall be terminated and the
undersigned shall be released from its obligations hereunder.
Yours
very truly,
____________________________
Name:
A-3
EXHIBIT
A-1
LIST
OF
PARTIES TO EXECUTE LOCK-UP AGREEMENTS
|
Name
|
Position
|
|
|
Irwin
D. Simon
|
President,
Chief Executive Officer and Chairman of the Board
|
|
|
Barry
J. Alperin
|
Director
|
|
|
Beth
L. Bronner
|
Director
|
|
|
Jack
Futterman
|
Director
|
|
|
Daniel
R. Glickman
|
Director
|
|
|
Marina
Hahn
|
Director
|
|
|
Andrew
R. Heyer
|
Director
|
|
|
Roger
Meltzer
|
Director
|
|
|
Mitchell
A. Ring
|
Director
|
|
|
Lewis
D. Schiliro
|
Director
|
|
|
D.
Edward I. Smyth
|
Director
|
|
|
Larry
S. Zilavy
|
Director
|
|
|
Ira
J. Lamel
|
Executive
Vice President and Chief Financial
Officer
|
A-1-1
EXHIBIT
B
OPINION
OF CAHILL GORDON & REINDEL LLP
December
23, 2005
UBS
Securities LLC
Banc
of
America Securities LLC
J.P.
Morgan Securities Inc.
as
Managing Underwriters
c/o
UBS
Securities LLC
299
Park
Avenue
New
York,
New York 10171-0026
Ladies
and Gentlemen:
| 1. |
The
Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware,
with
full corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Registration
Statement, the preliminary prospectus of the Company, dated December
13,
2005, relating to the Shares (including the basic prospectus attached
thereto and the documents incorporated by reference therein, the
“Pre-Pricing
Prospectus”),
the Prospectus and the Permitted Free Writing Prospectuses attached
hereto
as Annex
A,
to execute and deliver the Underwriting Agreement and to perform
its
obligations thereunder.
|
| 2. |
Celestial
has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of the State of Delaware, with full
corporate
power and authority to own, lease and operate its properties and
to
conduct its business as described in the Registration Statement,
the
Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing
Prospectuses attached hereto as Annex
A.
|
| 3. |
The
Company and Celestial are each duly qualified to do business as
a foreign
corporation and are in good standing in each jurisdiction where
the
ownership or leasing of their respective properties or the conduct
of
their respective businesses requires such qualification, except
where the
failure to be so qualified and in good standing would not, individually
or
in the aggregate, have a Material Adverse
Effect.
|
| 4. |
The
Underwriting Agreement has been duly authorized, executed and delivered
by
the Company.
|
| 5. |
The
Shares have been duly authorized and validly issued and are fully
paid and
non-assessable.
|
| 6. |
All
of the issued and outstanding shares of capital stock of the Company
have
been duly authorized and validly issued, are fully paid and non-assessable
and are free of statutory preemptive rights and, to our knowledge,
contractual preemptive rights, resale rights, rights
|
B-1
of
first
refusal and similar rights;
| 7. |
All
of the outstanding shares of capital stock of Celestial have been
duly
authorized and validly issued, are fully paid and non-assessable
and,
except as otherwise disclosed in the Registration Statement (excluding
the
exhibits thereto), the Pre-Pricing Prospectus and the Prospectus,
are
owned by the Company, subject to no security interest, other encumbrance
or adverse claim; the Shares are duly listed, and admitted and
authorized
for trading, on the NASDAQ.
|
| 8. |
The
capital stock of the Company, including the Shares, conforms in
all
material respects to the description thereof, if any, contained
in the
Registration Statement, the Pre-Pricing Prospectus, the
Prospectus
and the Permitted Free Writing Prospectuses attached hereto as
Annex
A.
|
| 9. |
The
Registration Statement, the Pre-Pricing Prospectus and the Prospectus
(except as to the financial statements and schedules, and other
financial
data derived therefrom, contained in the Registration Statement,
the
Pre-Pricing Prospectus and the Prospectus, as to which we express
no
opinion) comply as to form in all material respects with the requirements
of the Act (including, in the case of the Prospectus, Section 10(a)
of the
Act); the conditions to the use of Form S-3 in connection with
the
offering and sale of the Shares as contemplated by the Underwriting
Agreement have been satisfied; the Registration Statement meets,
and the
offering and sale of the Shares as contemplated by the Underwriting
Agreement complies with, the requirements of Rule 415 under the
Act
(including, without limitation, Rule 415(a)(5)); and each Incorporated
Document, at the time such document was filed with the Commission
or at
the time such document became effective, as applicable, complied
as to
form in all material respects with the requirements of the Exchange
Act
(except as to the financial statements and schedules, and other
financial
data derived therefrom, contained in such document, as to which
we express
no opinion).
|
| 10. |
To
our knowledge, the Company is not an “ineligible issuer” (as defined in
Rule 405 under the Act) as of the eligibility determination date
for
purposes of Rules 164 and 433 under the Act with respect to the
offering
of the Shares contemplated by the Registration
Statement.
|
| 11. |
The
Registration Statement has become effective under the Act and,
to our
knowledge, no stop order proceedings with respect thereto are pending
or
threatened under the Act, and any required filing of the Prospectus
and
any supplement thereto pursuant to Rule 424 or Rule 430B under
the Act has
been made in the manner and within the time period required by
such Rule
424
and in compliance with Rule 430B under the
Act.
|
| 12. |
No
approval, authorization, consent or order under any federal law,
the laws
of the State of New York or under the Delaware General Corporation
Law or
approval, authorization, consent of or filing with any New York
or
Delaware governmental or regulatory commission, board, body, authority
or
agency, or approval of the stockholders of the Company, is required
in
connection with the sale of the Shares or with the consummation
of the
transactions contemplated by the Underwriting Agreement other than
registration of the Shares under the Act (except that we express
no
opinion as to any necessary qualification under the state
|
B-2
securities
or blue sky laws of the various jurisdictions in which the Shares are being
offered by the Underwriters or as to the rules and regulations of the NASD
applicable to its members).
| 13. |
The
execution, delivery and performance of the Underwriting Agreement
by the
Company, the sale of the Shares pursuant to the Underwriting Agreement
and
the consummation of the transactions contemplated by the Underwriting
Agreement do not and will not result in any breach or violation
of or
constitute a default under (nor constitute any event which, with
notice,
lapse of time or both, would result in any breach or violation
of or
constitute a default under or give the holder of any indebtedness
(or a
person acting on such holder’s behalf) the right to require the
repurchase, redemption or repayment of all or a part of such indebtedness
under) (or result in the creation or imposition of a lien, charge
or
encumbrance on any property or assets of the Company or any Subsidiary
pursuant to) (i) the charter or bylaws of the Company or any of
the
Subsidiaries, or (ii) any indenture, mortgage, deed of trust, bank
loan or
credit agreement or other evidence of indebtedness, or any license,
lease,
contract or other agreement or instrument (collectively, “Agreements
and Instruments”)
which is filed as an exhibit to the Registration Statement or any
Incorporated Document, or (iii) federal laws, the laws of the State
of New
York or the Delaware General Corporation Law, or (iv) any decree,
judgment
or order applicable to the Company or any of the Subsidiaries or
any of
their respective properties, which decree, judgment or order is
known by
us except, in (iii) or (iv) as would not reasonably be expected
to have a
Material Adverse Effect.
|
| 14. |
To
our knowledge, there are no contracts, licenses, agreements, leases
or
documents of a character which are required to be described in
the
Registration Statement, the Pre-Pricing Prospectus or the Prospectus
or to
be filed as an exhibit to the Registration Statement or any Incorporated
Document which have not been so described or filed as
required.
|
| 15. |
To
our knowledge, (i) the Company is not a party to any legal or governmental
action or proceeding that challenges the validity or enforceability,
or
seeks to enjoin the performance, of the Underwriting Agreement;
and (ii)
there are no actions, suits, claims, investigations or proceedings
pending, threatened or contemplated to which the Company or any
of the
Subsidiaries or any of their respective directors or officers is
or would
be a party or to which any of their respective properties is or
would be
subject at law or in equity, before or by any federal, state, local
or
foreign governmental or regulatory commission, board, body, authority
or
agency which are required to be described in the Registration Statement,
the Pre-Pricing Prospectus or the Prospectus but are not so described
as
required.
|
| 16. |
Neither
the Company nor Celestial is and, after giving effect to the offering
and
sale of the Shares, neither will be an “investment company” or an entity
“controlled” by an “investment company,” as such terms are defined in the
Investment Company Act.
|
| 17. |
The
statements in the Registration Statement, the Pre-Pricing Prospectus
and
the Prospectus under the headings “Description of Capital Stock,” and
“Underwriting” insofar as such statements constitute summaries of
documents or legal proceedings or refer to matters of law or legal
conclusions, are accurate and complete in all material respects
and
present fairly the information purported to be shown.
|
B-3
| 18. |
No
person has the right, pursuant to the terms of any contract, agreement
or
other instrument described in or filed as an exhibit to the Registration
Statement or any Incorporated Document or otherwise known to us,
to cause
the Company to register under the Act any shares of Common Stock
or shares
of any other capital stock or other equity interest in the Company
(other
than the filing of a registration statement for 100,482 shares
of Common
Stock issued to Yeo Hiap Seng Limited and Yeo Hiap Seng (Malaysia)
Berhad)
or to include any such shares or interest in the Registration Statement
or
the offering contemplated thereby.
|
19.
We
have participated in conferences with officers and other representatives
of the
Company, representatives of the independent registered public accounting
firm
for the Company and representatives of the Underwriter at which the contents
of
the Registration Statement, the Prospectus and the documents specified in
Annex
A hereto (the “General Disclosure Documents”) and related matters were
discussed. Although we have made certain inquiries and investigations in
connection with the preparation of the Registration Statement, the Prospectus
and the General Disclosure Documents, the limitations inherent in the role
of
outside counsel are such that we cannot and do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in such documents, except as provided in paragraph 17 of our opinion
to you of even date herewith. Subject to the foregoing, we advise you
that, in connection with our work on this matter, no facts have come to our
attention that lead us to believe that (i) the Registration Statement,
including the documents incorporated therein by reference, at the Effective
Time, contained any untrue statement of a material fact or omitted to state
any
material fact required to be stated therein or necessary to make the statements
therein not misleading, (ii) the Prospectus, as of its date or as of the
date hereof, contained or contains any untrue statement of a material fact
or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading or (iii) the General Disclosure Documents, as of 4:30
pm (Eastern time) on the date of the Underwriting Agreement, contained or
contains any untrue statement of a material fact or omitted or omits to state
a
material fact necessary in order to make the statements therein, in the light
of
the circumstances under which they were made, not misleading (it being
understood that we express no comment with respect to the financial statements,
including the notes thereto, or any other financial data included in or
incorporated by reference into the Registration Statement, the Prospectus
or the
General Disclosure Documents).
Capitalized
terms used herein without definition shall have the respective meanings ascribed
to them in the Underwriting Agreement.
B-4
ANNEX
A TO EXHIBIT B
1.
Pre-Pricing Prospectus dated as of December 13, 2005
2.
Schedule C attached to the Underwriting Agreement
B-5
EXHIBIT
C
OPINION
OF THEODORE N. BOBBY, ESQ.,
Counsel
for the Selling Stockholder
December
23, 2005
UBS
Securities LLC
Banc
of
America Securities LLC
J.P.
Morgan Securities Inc.
As
Managing Underwriters
c/o
UBS
Securities LLC
299
Park
Avenue
New
York,
New York 10171-0026
Ladies
and Gentlemen:
I
am the
Senior Vice President and General Counsel of H.J. Heinz Company, and I have
acted as counsel for HJH One, L.L.C., a Delaware limited liability company
(the
“Selling
Stockholder”),
in
connection with the Underwriting Agreement dated December 19, 2005 (the
“Underwriting
Agreement”)
among
The Hain Celestial Group, Inc., a Delaware corporation (the “Company”),
the
Selling Stockholder and you, as representatives of the several underwriters
named in Schedule A thereto (the “Underwriters”).
Pursuant to the Underwriting Agreement, the Selling Stockholder proposes
to
sell, and you severally propose to purchase, an aggregate of 5,295,957 shares
(the “Shares”)
of the
Company’s common stock, par value $0.01 per share. This opinion is delivered
pursuant to Section 9(b) of the Underwriting Agreement at the request of
the
Selling Stockholder.
I
have
examined originals or copies, certified or otherwise identified to my
satisfaction, of such documents, corporate records, certificates of public
officials and other instruments as I have deemed necessary for the purposes
of
rendering this opinion. I have assumed the genuineness of all
signatures.
Capitalized
terms used but not otherwise defined herein are used as defined in the
Underwriting Agreement.
Based
upon the foregoing, I am of the opinion that:
(i) The
Selling Stockholder has been duly organized and is validly existing as a
limited
liability company in good standing under the laws of Delaware, with full
power
and authority to conduct its business.
(ii) Each
of
the Custody Agreement and Underwriting Agreement has been duly authorized,
executed and delivered by the Selling Stockholder. The Custody Agreement
is a
C-1
valid
and
binding agreement of the Selling Stockholder, subject to applicable bankruptcy,
insolvency or similar laws affecting creditor’s rights generally and equitable
principles of general applicability.
(iii) The
execution, delivery and performance by the Selling Stockholder of the Custody
Agreement and Underwriting Agreement, and the sale of the Shares to be sold
by
the Selling Stockholder, will not result in a breach or violation of (A)
any of
the terms or provisions of its limited liability company agreement, (B) any
other agreement to which the Selling Stockholder is a party or by which its
assets are bound or (C) any provision of United States federal or New York
state
law or the Delaware Limited Liability Company Act that in our experience
is
normally applicable to limited liability companies in relation to transactions
of the type contemplated by the Underwriting Agreement, provided that I express
no opinion as to any United States federal or state securities
laws.
(iv) No
consent, approval, authorization or order of any governmental agency or body
under United States federal or New York state law that in my experience is
normally applicable to limited liability companies in relation to transactions
of the type contemplated by the Underwriting Agreement is required to be
obtained or made by the Selling Stockholder for the execution, delivery and
performance of the Underwriting Agreement or in connection with the sale
to the
Underwriters of the Shares sold by the Selling Stockholder, except such as
have
been obtained and such as may be required under federal or state securities
laws, as to which I express no opinion.
(v) Upon
payment for the Shares to be sold by the Selling Stockholder to the Underwriters
as provided in the Underwriting Agreement, the delivery of such Shares to
Cede
& Co. (“Cede”)
or
such other nominee as may be designated by The Depository Trust Company
(“DTC”),
the
registration of such Shares in the name of Cede or such other nominee and
the
crediting of such Shares on the records of DTC to security accounts in the
name
of the Underwriters (assuming that neither DTC nor any of the Underwriters
has
notice of any adverse claim (as such phrase is defined in Section 8-105 of
the
Uniform Commercial Code as in effect in the State of New York (the “UCC”))
to
such Shares or any security entitlement in respect thereof), (A) DTC shall
be a
“protected purchaser” of such Shares within the meaning of Section 8-303 of the
UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a
security entitlement in respect of such Shares and (C) to the extent governed
by
Article 8 of the UCC, no action based on any “adverse claim” (as defined in
Section 8-102 of the UCC) to such Shares may be asserted against the
Underwriters; it being understood that for purposes of this opinion, we have
assumed that when such payment, delivery and crediting occur, (x) such Shares
will have been registered in the name of Cede or such other nominee as may
be
designated by DTC, in each case on the Company’s share registry in accordance
with its certificate of incorporation, bylaws and applicable law, (y) DTC
will
be registered as a “clearing corporation” within the meaning of Section 8-102 of
the UCC and (z) appropriate entries to the securities account or accounts
in the
names of the Underwriters on the records of DTC will have been made pursuant
to
the UCC.
(vi) The
statements included in the Pre-Pricing Prospectus, the Prospectus and the
Registration Statement, in each case, under the captions “Selling Stockholder”
(with your permission, except with respect to the dollar amounts of transactions
described under “—
C-2
Transactions
between Heinz and us in the last three years”), “Underwriting,” “Plan of
Distribution,” “Item 14 - Other Expenses of Issuance and Distribution,” and the
statements in the revised definitive proxy statement on Schedule 14A filed
with
the Commission on October 31, 2005 under the caption “Certain Relationships”
(except as aforesaid with respect to dollar amounts in the third paragraph
thereof) to the extent that they relate to the Selling Stockholder, H.J.
Heinz
Company and each affiliate of H.J. Heinz Company (other than the Company)
were
and are true and correct in all material respects at the Effective Time,
as of
the date of the Pre-Pricing Prospectus or the Prospectus, the date of the
Underwriting Agreement or the date hereof.
I
am a
member of the Bar of the Commonwealth of Pennsylvania and the foregoing opinion
is limited to the laws of the Commonwealth of Pennsylvania, the Delaware
Limited
Liability Company Act and the federal laws of the United States. As to all
matters related to New York law, I have relied, with your permission, on
the
opinion of Davis Polk & Wardwell delivered to the Selling Stockholder of
even date herewith, a copy of which is attached hereto.
I
have
assumed (except as expressly set forth above with respect to the Selling
Stockholder) that each party to each of the Custody Agreement and the
Underwriting Agreement has been duly organized and is validly existing and
in
good standing under the laws of its jurisdiction of organization. In addition,
I
have assumed (except as expressly set forth above with respect to the Selling
Stockholder) that the execution, delivery and performance by each party thereto
of each such agreement to which it is a party, (1) are within its corporate
or
limited liability company powers, (2) do not contravene, or constitute a
default
under, the constitutive documents of such party, (3) require no action by
or in
respect of, or filing with, any governmental body, agency or official and
(4) do
not contravene, or constitute a default under, any provision of applicable
law
or regulation or any judgment, injunction, order or decree or any agreement
or
other instrument binding upon such party.
This
opinion is rendered solely to you and the other several Underwriters in
connection with the Underwriting Agreement. This opinion may not be relied
upon
by you for any other purpose or relied upon by any other person (including
any
person acquiring Shares from the several Underwriters) or furnished to any
other
person without our prior written consent.
|
Very
truly yours,
|
C-3
EXHIBIT
D
OFFICERS’
CERTIFICATE
Each
of
the undersigned, Irwin D. Simon, President, in his capacity as Chief Executive
Officer and Chairman of the Board of The Hain Celestial Group, Inc., a Delaware
corporation (the “Company”),
and
Ira J. Lamel, in his capacity as Executive Vice President and Chief Financial
Officer of the Company, on behalf of the Company, does hereby certify pursuant
to Section 9(h)
of that
certain Underwriting Agreement dated December 19, 2005 (the “Underwriting
Agreement”)
among
the Company, the Selling Stockholder named therein and, on behalf of the
several
Underwriters named therein, UBS Securities LLC, Banc of America Securities
LLC
and J.P. Morgan Securities Inc., that as of December 23, 2005:
| 1. |
He
has reviewed the Registration Statement, each Pre-Pricing Prospectus,
the
Prospectus and each Permitted Free Writing
Prospectus.
|
| 2. |
The
representations and warranties of the Company as set forth in the
Underwriting Agreement are true and correct as of the date hereof
and as
if made on the date hereof.
|
| 3. |
The
Company has performed all of its obligations under the Underwriting
Agreement as are to be performed at or before the date
hereof.
|
| 4. |
The
conditions set forth in paragraph (g)
of
Section 9
of
the Underwriting Agreement have been
met.
|
| 5. |
Attached
hereto as Exhibit
A
is
a schedule setting forth the derivation from the Company’s audited
financial statements as of June 30, 2005 and 2004 and for the three
years
ended June 30, 2005 of the “non-GAAP” financial figures included in the
Company’s Annual Report on Form 10-K for the fiscal year ended June 30,
2005, which were not subsequently included in the Company’s Form 10-K/A
for such fiscal year. The undersigned have reviewed such schedule
and
confirm that such figures were derived as set forth in such
schedule.
|
Capitalized
terms used herein without definition shall have the respective meanings ascribed
to them in the Underwriting Agreement.
D-1
In
Witness Whereof,
the
undersigned have hereunto set their hands on this 23rd day of December,
2005.
|
________________________________
Name:
Irwin
D. Simon
Title:
President,
Chief Executive Officer
and Chairman of the Board |
|
_______________________________
Name:
Ira
J. Lamel
Title:
Executive
Vice President and
Chief Financial Officer |
D-2
EXHIBIT
E
CERTIFICATE
OF THE SELLING STOCKHOLDER
The
undersigned, Leonard A. Cullo, Jr., on behalf of the Selling Stockholder
(as
defined in the Underwriting Agreement referred to below), does hereby certify
pursuant to Section 9(i)
of that
certain Underwriting Agreement dated December 19, 2005 (the “Underwriting
Agreement”)
among
the Company, the Selling Stockholder named therein, and the Underwriters
named
therein, that as of December 23, 2005:
| 1. |
The
representations and warranties of the Selling Stockholder as set
forth in
the Underwriting Agreement are true and correct as of the date
hereof and
as if made on the date hereof except for representations and warranties
that we made as of a specific date, which shall be true at and
as of such
specific date.
|
| 2. |
The
Selling Stockholder has performed all of its obligations under
the
Underwriting Agreement as are to be performed at or before the
date
hereof.
|
| 3. |
The
Selling Stockholder confirms that any preemptive rights, resale
rights,
rights of first refusal and similar rights with respect to the
Company’s
Common Stock arising under the Investor’s Agreement among the Company, the
Selling Stockholder and Irwin D. Simon, dated September 24, 1999,
to the
extent benefiting the Selling Stockholder, have been duly waived
by the
Selling Stockholder as to the transactions contemplated by the
Underwriting Agreement.
|
Capitalized
terms used herein without definition shall have the respective meanings ascribed
to them in the Underwriting Agreement.
The
statements in this certificate are deemed to be representations and warranties
by the Selling Stockholder, of the matters covered herein, to each Underwriter.
E-1
In
Witness Whereof,
the
undersigned has hereunto set his hands on this 23rd day of December, 2005,
on
behalf of the Selling Stockholder.
|
HJH
ONE, L.L.C.
_____________________________
Name: Leonard
A. Cullo, Jr.
Title: Vice
President
|
E-2
Exhibit
99.1
Contact:
Ira
Lamel/Mary
Anthes
Jeremy
Fielding/David Lilly
The
Hain Celestial Group,
Inc.
Kekst
and
Company
631-730-2200 212-521-4800
|
|
THE
HAIN CELESTIAL GROUP
ANNOUNCES
PRICING OF SECONDARY OFFERING
OF
ITS SHARES HELD BY H.J. HEINZ COMPANY
Melville,
NY, December 20, 2005—The
Hain
Celestial Group, Inc. (NASDAQ HAIN), a leading natural and organic food and
personal care products company, today announced the pricing of a secondary
offering of 5,295,957 shares of its common stock held by an affiliate of H.
J.
Heinz Company at a public offering price of $20.00 per share. Heinz has
granted the underwriters a 30-day option to purchase up to 794,394 additional
shares of common stock to cover over-allotments, if any. Hain Celestial will
not
receive any of the proceeds from the sale of the shares by Heinz. UBS
Securities LLC, Banc of America Securities LLC and J.P. Morgan Securities Inc.
acted as joint bookrunners.
This
press release shall not constitute an offer to sell or the solicitation of
an
offer to buy nor shall there be any sale of these securities in any state or
other jurisdiction in which such offer, solicitation or sale, would be unlawful
prior to registration or qualification under the securities laws of such state
or jurisdiction. Copies of the final prospectus for the offering can be obtained
by contacting UBS Securities LLC, Prospectus Department, 299 Park Avenue, New
York, NY 10171 or by calling 212-821-3000, Banc of America Securities LLC (by
email at dg.prospectus_distribution@bofasecurities.com), or J.P. Morgan
Securities Inc., Prospectus Department, One Chase Manhattan Plaza, New York,
New
York 10081 (telephone: 212-552-5164).
The
Hain Celestial Group
The
Hain
Celestial Group (NASDAQ: HAIN), headquartered in Melville, NY, is a leading
natural and organic food and personal care products company in North America
and
Europe. Hain Celestial participates in almost all natural food categories with
well-known brands that include Celestial Seasonings®, Terra Chips®, Garden of
Eatin’®, Health Valley®, WestSoy®, Earth’s Best®, Arrowhead Mills®, DeBoles®,
Hain Pure Foods®, Raised Right®, Hollywood®, Walnut Acres Organic™, Imagine
Foods®, Rice Dream®, Soy Dream®, Rosetto®, Ethnic Gourmet®, Yves Veggie
Cuisine®, Lima®, Biomarché™, Grains Noirs®, Natumi®, JASON® and Zia® Natural
Skincare. For more information, visit www.hain-celestial.com.
Safe
Harbor Statement
This
press release contains forward-looking statements within and constitutes a
"Safe
Harbor" statement under the Private Securities Litigation Act of 1995. Except
for the historical information contained herein, the matters discussed in this
press release are forward-looking statements that involve known and unknown
risks and uncertainties, which could cause our actual results to differ
materially from those described in the forward-looking statements. These risks
include but are not limited to general economic and business conditions; the
ability to implement business and acquisition strategies, integrate
acquisitions, and obtain financing for general corporate purposes; competition;
retention of key personnel; compliance with government regulations and other
risks detailed from time-to-time in the Company's reports filed with the
Securities and Exchange Commission, including the report on Form 10-K, as
amended, for the fiscal year ended June 30, 2005. The forward-looking statements
made in this press release are current as of the date of this press release,
and
the Company does not undertake any obligation to update forward-looking
statements.