View:
Registration
No. 333-
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
______________________________
THE
HAIN CELESTIAL GROUP, INC.
(Exact
name of registrant as specified in its charter)
|
Delaware
|
22-3240619
|
|
(State
or other jurisdiction of
incorporation
or organization)
|
(I.R.S.
Employer
Identification
Number)
|
58
South Service Road
Melville,
New York 11747
(631)
730-2200
(Address,
including zip code, and telephone number, including area code,
of
registrant’s principal executive offices)
Irwin
D.
Simon
Chairman
of the Board, President and Chief Executive Officer
The
Hain
Celestial Group, Inc.
58
South
Service Road
Melville,
New York 11747
(631)
730-2200
(Name,
address, including zip code, and telephone number,
including
area code, of agent for service)
______________________________
copy
to:
Geoffrey
E. Liebmann, Esq.
Cahill
Gordon & Reindel LLP
80
Pine
Street
New
York,
New York 10005
(212)
701-3000
______________________________
Approximate
date of commencement of proposed sale to the public:
From
time to time after this registration statement becomes effective.
If
the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box. [
]
If
any of
the securities being registered on this Form are to be offered on a delayed
or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If
this
Form is filed to register additional securities for an offering pursuant to
Rule
462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If
this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. [ ]
If
this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. [X]
If
this
Form is a post-effective amendment to a registration statement filed pursuant
to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. [ ]
————————————
CALCULATION
OF REGISTRATION FEE
|
Title
of Each Class of
Securities
to be Registered
|
Amount
to be Registered
|
Proposed
Maximum
Offering
Price
Per
Share
|
Proposed
Maximum
Aggregate
Offering Price
|
Amount
of Registration Fee
|
|
Common
Stock, Preferred Stock, Warrants
|
(1)
|
(1)
|
(1)
|
(2)
|
|
(1)
|
Not
applicable pursuant to Form S-3 General Instruction II(E). An
indeterminate aggregate initial offering price or number of shares
of
common stock, preferred stock and warrants of the Registrant is being
registered as may from time to time be issued at indeterminate prices.
Separate consideration may or may not be received for securities
that are
issuable on exercise, conversion or exchange of other securities.
|
|
(3)
|
In
accordance with Rule 456(b) and Rule 457(r), the registrant is deferring
payment of all of the registration
fee.
|
PROSPECTUS
THE
HAIN CELESTIAL GROUP, INC.
The
following are types of securities that we may offer, issue and sell from time
to
time, or that may be sold by selling securityholders from time to time, together
or separately:
| · |
shares
of our common stock;
|
| · |
shares
of our preferred stock; and
|
| · |
warrants
to purchase equity securities.
|
This
prospectus describes some of the general terms that may apply to these
securities. The specific terms of any securities to be offered will be described
in supplements to this prospectus. The prospectus supplements may also add,
update or change information contained in this prospectus. You should read
this
prospectus and the applicable prospectus supplement carefully before you make
your investment decision.
We
may
offer and sell these securities through one or more underwriters, dealers and
agents, securities through underwriting syndicates managed or co-managed by
one
or more underwriters, or directly to purchasers, on a continuous or delayed
basis.
To
the
extent that any selling securityholder resells any securities, the selling
securityholder may be required to provide you with this prospectus and a
prospectus supplement identifying and containing specific information about
the
selling securityholder and the terms of the securities being
offered.
This
prospectus may not be used to sell securities unless accompanied by a prospectus
supplement.
The
prospectus supplement for each offering of securities will describe in detail
the plan of distribution for that offering. Our common stock is quoted on The
Nasdaq National Market (“Nasdaq”)
under
the symbol “HAIN.” Each prospectus supplement will indicate if the securities
offered thereby will be listed on any securities exchange.
______________________
See
“Risk Factors” beginning on page 1 for a discussion of certain factors which
should be considered in an investment of securities offered
hereby.
______________________
NEITHER
THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION
HAS
APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OR
ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
______________________
The
date
of this prospectus is March 3, 2006.
-i-
TABLE
OF CONTENTS
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Page
|
|
|
ABOUT
THIS PROSPECTUS
|
ii
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|
RISK
FACTORS
|
1
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|
USE
OF PROCEEDS
|
8
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DESCRIPTION
OF SECURITIES
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9
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DESCRIPTION
OF COMMON STOCK
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9
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DESCRIPTION
OF PREFERRED STOCK
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10
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DESCRIPTION
OF WARRANTS
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11
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LEGAL
MATTERS
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12
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EXPERTS
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12
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WHERE
YOU CAN FIND MORE INFORMATION
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12
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___________________________
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities
and Exchange Commission using a “shelf” registration process. Under this
process, we or the selling securityholders may, from time to time, sell any
combination of common stock, preferred stock and warrants as described in this
prospectus, in one or more offerings.
You
should read both this prospectus and any prospectus supplement together with
the
additional information described under the heading “Where You Can Find More
Information.”
You
should rely on the information contained or incorporated by reference in this
prospectus. We have not authorized anyone to provide you with different
information. If anyone provides you with different or inconsistent information,
you should not rely on it. We are not making an offer to sell these securities
in any jurisdiction where the offer or sale is not permitted.
You
should assume that the information in this prospectus is accurate as of the
date
of the prospectus. Our business, financial condition, results of operations
and
prospects may have changed since that date.
Certain
statements contained in this prospectus constitute “forward-looking statements”
within the meaning of Section 27A of the Securities Act of 1934, or the
“Securities
Act,”
and
Section 21E of the Securities Exchange Act of 1934, or the “Exchange
Act.”
Such
forward-looking statements involve known and unknown risks, uncertainties and
other factors which may cause our actual results, levels of activity,
performance or achievements, or industry results, to be materially different
from any future results, levels of activity, performance or achievements
expressed or implied by such forward-looking statements. Such factors include,
among others, the following: general economic and business conditions; our
ability to implement our business strategies; our ability to meet anticipated
levels of sales and to not exceed anticipated levels of expense; our ability
to
complete pending acquisitions and to integrate completed acquisitions; our
ability to achieve anticipated benefits from recently initiated
-ii-
alliances
and joint ventures; our ability to obtain financing when needed, whether for
acquisitions, capital or other investments or general corporate purposes; our
reliance on third party distributors, manufacturers and suppliers; competition;
changes in customer preferences; retention of key personnel; compliance with
government regulations; international sales and operations; the factors
discussed in this prospectus (including under the caption “Risk Factors”); and
other risks detailed from time-to-time in our reports filed with the Securities
and Exchange Commission (the “SEC”),
including our report on Form 10-K for the fiscal year ended June 30, 2005,
as
amended. As a result of the foregoing and other factors, no assurance can be
given as to the future results, levels of activity and achievements and neither
Hain nor any person assumes responsibility for the accuracy and completeness
of
these statements. If one or more of these risks or uncertainties materialize,
or
if the underlying assumptions prove incorrect, actual outcomes may vary
materially from those indicated. The words “expect,” “estimate,” “anticipate,”
“predict” and similar expressions are intended to identify forward-looking
statements.
Our
principal executive offices are located at 58 South Service Road, Melville,
New
York 11747, and our telephone number is 631-730-2200. Our World Wide Web site
address is www.hain-celestial.com. The information on our website is not part
of
this prospectus.
References
in this prospectus to “we,”
“us,”
“our,”
the
“Company”
and
“Hain”
refer
to The Hain Celestial Group, Inc. and its subsidiaries.
-iii-
RISK
FACTORS
Prospective
investors should carefully consider the following factors and the other
information contained in this prospectus before purchasing any shares of our
common stock. If
any of the following risks and uncertainties develop into actual events, our
business, financial condition or results of operations could be materially
adversely affected. In such case, the trading price of our common stock could
decline, and you may lose all or part of your investment.
Hain’s
Markets Are Highly Competitive
Hain
operates in highly competitive geographic and product markets, and some of
its
markets are dominated by competitors with greater resources. Hain cannot be
certain that it could successfully compete for sales to distributors or stores
that purchase from larger, more established companies that have greater
financial, managerial, sales and technical resources. In addition, Hain competes
for limited retailer shelf space for its products. Larger competitors, such
as
mainstream food companies including but not limited to Dean Foods Company,
General Mills, Inc., Nestle S.A., Kraft Foods Inc., Groupe Danone, Kellogg
Company, PepsiCo, Inc. and Sara Lee Corporation, also may be able to benefit
from economies of scale, pricing advantages or the introduction of new products
that compete with Hain’s products. Retailers also market competitive products
under their own private labels.
One
example of the competitiveness of the markets in which Hain participates is
in
the tea portion of the beverage market. Competitive factors in the tea industry
include product quality and taste, brand awareness among consumers, variety
of
specialty tea flavors, interesting or unique product names, product packaging
and package design, supermarket and grocery store shelf space, alternative
distribution channels, reputation, price, advertising and promotion. Hain’s
principal competitors on a national basis in the specialty tea market are Thomas
J. Lipton Company, a division of Unilever PLC, and R.C. Bigelow, Inc. Unilever
has substantially greater financial resources than Hain. In addition, in April
2004, Tazo Tea Company (a subsidiary of Starbucks Corporation) and Kraft Foods
Global, Inc. (a subsidiary of Kraft Foods Inc.) announced a licensing agreement
whereby Tazo products may gain additional access to grocery channels through
placement by Kraft, which has substantially greater financial resources than
Hain. Additional competitors include a number of regional specialty tea
companies. There may be potential entrants which are not currently in the
specialty tea market who may have substantially greater resources than Hain.
Private label competition in the specialty tea category is currently minimal,
but growing.
In
the
future, competitors may introduce other products that compete with Hain’s
products and these competitive products may have an adverse effect on Hain’s
business, results of operations and financial condition.
Hain
also
competes with other manufacturers in the procurement of natural and organic
product ingredients, which may be less plentiful in the open market than
conventional product ingredients. This competition may increase in the future
along with increasing public demand for natural and organic products. This
could
cause Hain’s expenses to increase or could limit the amount of product that Hain
can manufacture and sell.
Consumer
Preferences for Hain’s Products Are Difficult to Predict and May Change
A
significant shift in consumer demand away from Hain’s products or Hain’s failure
to maintain its current market position could reduce Hain’s sales or the
prestige of its brands in its markets, which
could
harm Hain’s business. While Hain continues to diversify its product offerings,
Hain cannot be certain that demand for its products will continue at current
levels or increase in the future.
Hain’s
business is primarily focused on sales of natural and organic products in
markets geared to consumers of natural foods, specialty teas, non-dairy
beverages, cereals, breakfast bars, canned soups and vegetables, snacks and
cooking oils, which, if consumer demand for such categories were to decrease,
could harm its business. Consumer trends change based on a number of possible
factors, including:
| · |
nutritional
values, such as a change in preference from fat free to reduced fat
to no
reduction in fat; and
|
| · |
a
shift in preference from organic to non-organic and from natural
products
to non-natural products.
|
In
addition, Hain has other product categories, such as medically-directed food
products and other specialty food items, as well as natural health and beauty
care products. Hain is subject to evolving consumer preferences for these
products.
Hain’s
Acquisition Strategy Exposes Hain to Risk
Hain
intends to continue to grow its business in part through the acquisition of
new
brands, both in the United States and internationally. Hain’s acquisition
strategy is based on identifying and acquiring brands with products that
complement Hain’s existing product mix. Hain cannot be certain that it will be
able to:
| · |
successfully
identify suitable acquisition candidates;
|
| · |
negotiate
identified acquisitions on terms acceptable to Hain; or
|
| · |
obtain
the necessary financing to complete such acquisitions.
|
Hain
may
encounter increased competition for acquisitions in the future, which could
result in acquisition prices Hain does not consider acceptable. Hain is unable
to predict whether or when any prospective acquisition candidate will become
available or the likelihood that any acquisition will be completed.
Hain’s
Future Success May Be Dependent on Its Ability to Integrate Brands That It
Acquires
Hain’s
future success may be dependent upon its ability to effectively integrate new
brands that it acquires, including its ability to realize potentially available
marketing opportunities and cost savings, some of which may involve operational
changes. Hain cannot be certain:
| · |
as
to the timing or number of marketing opportunities or amount of cost
savings that may be realized as the result of its integration of
an
acquired brand;
|
| · |
that
a business combination will enhance Hain’s competitive position and
business prospects;
|
| · |
that
Hain will not experience difficulties with customers, personnel or
other
parties as a result of a business combination; or
|
| · |
that,
with respect to its acquisitions outside the United States, Hain
will not
be affected by, among other things, exchange rate risk.
|
In
addition, Hain cannot be certain that it will be successful in:
-2-
| · |
integrating
an acquired brand’s distribution channels with Hain’s own;
|
| · |
coordinating
sales force activities of an acquired brand or in selling the products
of
an acquired brand to Hain’s customer base; or
|
| · |
integrating
an acquired brand into Hain’s management information systems or
integrating an acquired brand’s products into Hain’s product mix.
|
Additionally,
integrating an acquired brand into Hain’s existing operations will require
management resources and may divert Hain’s management from its day-to-day
operations. If Hain is not successful in integrating the operations of acquired
brands, Hain’s business could be harmed.
Hain
Is Dependent Upon the Services of Its Chief Executive Officer
Hain
is
highly dependent upon the services of Irwin D. Simon, its Chairman of the Board,
President and Chief Executive Officer. Hain believes Mr. Simon’s reputation as
Hain’s founder and his expertise and knowledge in the natural and organic
products market are critical factors in Hain’s continuing growth. The loss of
the services of Mr. Simon could harm Hain’s business.
Hain
Relies on Independent Brokers and Distributors for a Substantial Portion of
Its
Sales
Hain
relies upon sales efforts made by or through non-affiliated food brokers to
distributors and other customers, in addition to Hain’s own retail sales
organization. The loss of, or business disruption at, one or more of these
distributors or brokers may harm Hain’s business. If Hain was required to obtain
additional or alternative distribution and food brokerage agreements or
arrangements in the future, Hain cannot be certain that it will be able to
do so
on satisfactory terms or in a timely manner. In fiscal 2005, one of Hain’s
distributors, United Natural Foods, Inc., or “UNFI,”
accounted for approximately 22% of Hain’s net sales. Two of Hain’s distributors,
UNFI and Tree of Life, Inc., who redistribute products to natural foods
supermarkets, independent natural retailers and other retailers, accounted
for
approximately 23% and 14%, respectively, of Hain’s net sales for the fiscal year
ended June 30, 2004, and approximately 18% and 15%, respectively, for the year
ended June 30, 2003. Hain’s inability to enter into satisfactory brokerage
agreements may inhibit Hain’s ability to implement its business plan or to
establish markets necessary to develop its products successfully. Food brokers
act as selling agents representing specific brands on a non-exclusive basis
under oral or written agreements generally terminable at any time on 30 days’
notice, and receive a percentage of net sales as compensation. Distributors
purchase directly for their own account for resale. In addition, the success
of
Hain’s business depends, in large part, upon the establishment and maintenance
of a strong distribution network.
Loss
of One or More of Hain’s Manufacturing Facilities Could Harm Hain’s Business
For
the
fiscal years ended June 30, 2005, 2004 and 2003, approximately 47%, 39% and
42%,
respectively, of Hain’s revenue was derived from products manufactured at Hain’s
manufacturing facilities. An interruption in or the loss of operations at one
or
more of these facilities, or the failure to maintain Hain’s labor force at one
or more of these facilities, could delay or postpone production of Hain’s
products, which could have a material adverse effect on Hain’s business, results
of operations and financial condition until Hain could secure an alternate
source of supply.
-3-
Hain
Relies on Independent Co-Packers to Produce Some or Most of Its Products
During
fiscal 2005, 2004 and 2003, approximately 53%, 61% and 58%, respectively, of
Hain’s revenue was derived from products manufactured at independent co-packers.
In the U.S., Hain presently obtains:
| · |
all
of its requirements for non-dairy beverages from five co-packers,
all of
which are under contract or other arrangements;
|
| · |
all
of its U.S. requirements for rice cakes from one co-packer;
|
| · |
all
of its Health Valley®
baked goods and cereal products from one co-packer, which is under
contract;
|
| · |
all
of its cooking oils from one co-packer;
|
| · |
principally
all of its Garden of Eatin’®
and Little Bear Organic Foods®
tortilla chips from three co-packers, one of which is under contract;
|
| · |
a
portion of its requirements for the Yukon Gold, Red Bliss™,
Terra Blues™
and Potpourri™
potato chips and Frites™
line of Terra®
products from one co-packer, which is under contract;
|
| · |
the
requirements for its canned soups from four co-packers, which are
under
contract;
|
| · |
all
of its Earth’s Best®
baby food products from seven co-packers, which are under contract;
|
| · |
a
portion of its Ethnic Gourmet®
products from one co-packer, which is under contract; and
|
| · |
all
of its Zia®
Natural Skincare products from four co-packers, which are under contract
or other arrangements.
|
The
loss
of one or more co-packers, or Hain’s failure to retain co-packers for newly
acquired products or brands, could delay or postpone production of Hain’s
products, which could have a material adverse effect on Hain’s business, results
of operations and financial condition until such time as an alternate source
could be secured, which may be on less favorable terms.
Hain’s
Tea Ingredients Are Subject to Import Risk
Hain’s
tea brand purchases its ingredients from numerous foreign and domestic
manufacturers, importers and growers, with the majority of those purchases
occurring outside of the United States. Hain maintains long-term relationships
with most of its suppliers. Purchase arrangements with ingredient suppliers
are
generally made annually and in U.S. currency. Purchases are made through
purchase orders or contracts, and price, delivery terms and product
specifications vary.
Hain’s
botanical purchasers visit major suppliers around the world annually to procure
ingredients and to assure quality by observing production methods and providing
product specifications. Many ingredients are presently grown in countries where
labor-intensive cultivation is possible, and where Hain often must educate
the
growers about product standards. Hain performs laboratory analysis on incoming
ingredient shipments for the purpose of assuring that they meet Hain’s quality
standards and those of the Food and Drug Administration, or the “FDA.”
Hain’s
ability to ensure a continuing supply of ingredients at competitive prices
depends on many factors beyond Hain’s control, such as foreign political
situations, embargoes, changes in national and world economic conditions,
currency fluctuations, forecasting adequate need of seasonal raw material
-4-
ingredients
and unfavorable climatic conditions. Hain takes steps and will continue to
take
steps intended to lessen the risk of an interruption of botanical supplies,
including identification of alternative sources and maintenance of appropriate
inventory levels. Hain has, in the past, maintained sufficient supplies for
its
ongoing operations.
Hain’s
failure to maintain relationships with its existing suppliers or find new
suppliers, observe production standards for its foreign procured products or
continue its supply of botanicals from foreign sources could harm Hain’s
business.
Hain’s
Future Results of Operations May be Adversely Affected by Escalating Fuel Costs
Many
aspects of Hain’s business have been, and continue to be, directly affected by
the continuously rising cost of fuel. Increased fuel costs have translated
into
increased costs for the products and services Hain receives from its third
party
providers including, but not limited to, increased production and distribution
costs for Hain’s products. As the cost of doing business increases, Hain may not
be able to pass these higher costs on to its customers and, therefore, any
such
increase may adversely affect Hain’s earnings.
Hain
Is Subject to Risks Associated with Its International Sales and Operations,
Including Foreign Currency Risks
Operating
in international markets involves exposure to movements in currency exchange
rates, which are volatile at times. The economic impact of currency exchange
rate movements is complex because such changes are often linked to variability
in real growth, inflation, interest rates, governmental actions and other
factors. Consequently, isolating the effect of changes in currency does not
incorporate these other important economic factors. These changes, if material,
could cause adjustments to Hain’s financing and operating strategies. During
fiscal 2005, approximately 21% of Hain’s net sales were generated outside the
United States, while such sales outside the United States were 20% of net sales
in 2004 and 17% in 2003.
Hain
expects sales from non-core U.S. markets to possibly represent an increasing
portion of its total net sales in the future. Hain’s non-U.S. sales and
operations are subject to risks inherent in conducting business abroad, many
of
which are outside Hain’s control, including:
| · |
periodic
economic downturns and unstable political environments;
|
| · |
price
and currency exchange controls;
|
| · |
fluctuations
in the relative values of currencies;
|
| · |
unexpected
changes in trading policies, regulatory requirements, tariffs and
other
barriers;
|
| · |
compliance
with applicable foreign laws; and
|
| · |
difficulties
in managing a global enterprise, including staffing, collecting accounts
receivable and managing distributors.
|
Hain’s
Inability to Use Its Trademarks Could Have a Material Adverse Effect on Hain’s
Business
Hain
believes that brand awareness is a significant component in a consumer’s
decision to purchase one product over another in the highly competitive food,
beverage and personal care industry. Although Hain endeavors to protect its
trademarks and trade names, there can be no assurance that these efforts will
be
successful, or that third parties will not challenge Hain’s right to use one or
more of its
-5-
trademarks
or trade names. Hain’s failure to continue to sell its products under its
established brand names could have a material adverse effect on Hain’s business,
results of operations and financial condition. Hain believes that its trademarks
and trade names are significant to the marketing and sale of its products and
that the inability to utilize certain of these names could have a material
adverse effect on Hain’s business, results of operations and financial
condition.
Hain’s
Products Must Comply with Government Regulation
The
United States Department of Agriculture, or the “USDA,”
has
adopted regulations with respect to a national organic labeling and
certification program which became effective February 20, 2001, and fully
implemented on October 21, 2002. Hain currently manufactures approximately
650
organic products which are covered by these regulations. Future developments
in
the regulation of labeling of organic foods could require Hain to further modify
the labeling of its products, which could affect the sales of its products
and
thus harm its business.
In
addition, on January 18, 2001, the FDA proposed new policy guidelines regarding
the labeling of genetically engineered foods. The FDA is currently considering
the comments it received before issuing final guidance. These guidelines, if
adopted, could require Hain to modify the labeling of its products, which could
affect the sales of its products and thus harm its business.
The
FDA
published the final rule amending the Nutritional Labeling regulations to
require declaration of “Trans Fatty Acids” in the nutritional label of
conventional foods and dietary supplements on July 11, 2003. The final rule
became effective on January 1, 2006. Additionally, an allergen labeling law
was
passed and signed on August 3, 2004. This law requires certain allergens to
be
clearly labeled by January 1, 2006. Hain has revised its labels in order to
be
in compliance with the final rules. Additionally, Canada adopted new food
labeling regulations that required implementation by December 12, 2005. These
regulations require a Nutritional Facts panel to be on most food packages.
Hain’s Yves products are subject to these regulations, as are all of Hain’s
other products sold into Canada. Any change in labeling requirements for Hain
products may lead to an increase in packaging costs or interruptions or delays
in packaging deliveries.
Furthermore,
new government laws and regulations may be introduced in the future that could
result in additional compliance costs, seizures, confiscations, recalls or
monetary fines, any of which could prevent or inhibit the development,
distribution and sale of Hain’s products. If Hain fails to comply with
applicable laws and regulations, it may be subject to civil remedies, including
fines, injunctions, recalls or seizures, as well as potential criminal
sanctions, which could have a material adverse effect on Hain’s business,
results of operations and financial condition.
Product
Recalls Could Have a Material Adverse Effect on Hain’s Business
Manufacturers
and distributors of products in Hain’s industry are sometimes subject to the
recall of their products for a variety of reasons, including for product
defects, such as ingredient contamination, packaging safety and inadequate
labeling disclosure. If any of Hain’s products are recalled due to a product
defect or for any other reason, Hain could be required to incur the expense
of
the recall or the expense of any resulting legal proceeding. Additionally,
if
one of Hain’s significant brands were subject to recall, the image of that brand
and of Hain could be harmed, which could have a material adverse effect on
Hain’s business.
-6-
Product
Liability Suits, If Brought, Could Have a Material Adverse Effect on Hain’s
Business
If
a
product liability claim exceeding Hain’s insurance coverage were to be
successfully asserted against Hain, it could harm Hain’s business. Hain cannot
assure you that such coverage will be sufficient to insure against claims which
may be brought against it, or that Hain will be able to maintain such insurance
or obtain additional insurance covering existing or new products. As a marketer
of food, beverage and personal care products, Hain is subject to the risk of
claims for product liability. Hain maintains product liability insurance and
generally requires that its co-packers maintain product liability insurance
with
Hain as a co-insured.
Hain
Relies on Independent Certification for a Number of Its Natural and Organic
Food
Products
Hain
relies on independent certification, such as certifications of Hain’s products
as “organic” or “kosher,” to differentiate its products from others. The loss of
any independent certifications could adversely affect Hain’s market position as
a natural and organic food company, which could harm Hain’s business.
Hain
must
comply with the requirements of independent organizations or certification
authorities in order to label its products as certified. For example, Hain
can
lose its “organic” certification if a manufacturing plant becomes contaminated
with non-organic materials, or if not properly cleaned after a production run.
In addition, all raw materials must be certified organic. Similarly, Hain can
lose its “kosher” certification if a manufacturing plant and raw materials do
not meet the requirements of the appropriate kosher supervision organization.
Due
to the Seasonality of Many of Hain’s Products, Including Hain’s Tea Products,
and Other Factors, Hain’s Operating Results Are Subject to Quarterly
Fluctuations
Hain’s
tea brand manufactures and markets hot tea products and, as a result, its
quarterly results of operations reflect seasonal trends resulting from increased
demand for its hot tea products in the cooler months of the year. In addition,
some of Hain’s other products (e.g., baking and cereal products and soups) also
show stronger sales in the cooler months while Hain’s snack food product lines
are stronger in the warmer months. Quarterly fluctuations in Hain’s sales volume
and operating results are due to a number of factors relating to Hain’s
business, including the timing of trade promotions, advertising and consumer
promotions and other factors, such as seasonality, inclement weather and
unanticipated increases in labor, commodity, energy, insurance or other
operating costs. The impact on sales volume and operating results due to the
timing and extent of these factors can significantly impact Hain’s business. For
these reasons, you should not rely on Hain’s quarterly operating results as
indications of future performance.
Hain’s
Growth is Dependent on Its Ability to Introduce New Products and Improve
Existing Products
Hain’s
growth depends in large part on its ability to generate and implement
improvements to its existing products and to introduce new products to
consumers. The innovation and product improvements are affected by the level
of
funding that can be made available, the technical capability of Hain’s research
and development department in developing and testing product prototypes, and
the
success of management in rolling out the resulting improvements in a timely
manner. If Hain is unsuccessful in implementing product improvements that
satisfy the demands of consumers, Hain’s business could be harmed.
-7-
The
Profitability of Hain’s Operations is Dependent on Its Ability to Manage Its
Inventory
Hain’s
profit margins depend on its ability to manage its inventory efficiently. As
part of Hain’s effort to manage its inventory more efficiently, Hain carried out
a SKU rationalization program which resulted in the discontinuation of numerous
lower-margin or low-turnover SKUs. However, a number of factors, such as changes
in customers’ inventory levels, access to shelf space and changes in consumer
preferences, may lengthen the number of days Hain carries certain inventories,
hence impeding its effort to manage its inventory efficiently.
Hain’s
Officers and Directors May Be Able to Control Hain’s Actions
Hain’s
officers and directors beneficially owned approximately 11.6% of Hain’s common
stock as of September 1, 2005. Accordingly, Hain’s officers and directors may be
in a position to influence the election of Hain’s directors and otherwise
influence stockholder action.
Hain’s
Ability to Issue Preferred Stock May Deter Takeover Attempts
Hain’s
board of directors is empowered to issue, without stockholder approval,
preferred stock with dividends, liquidation, conversion, voting or other rights
which could decrease the amount of earnings and assets available for
distribution to holders of Hain’s common stock and adversely affect the relative
voting power or other rights of the holders of Hain’s common stock. In the event
of issuance, the preferred stock could be used as a method of discouraging,
delaying or preventing a change in control. Hain’s amended and restated
certificate of incorporation authorizes the issuance of up to 5,000,000 shares
of “blank check” preferred stock with such designations, rights and preferences
as may be determined from time to time by Hain’s board of directors. Although
Hain has no present intention to issue any shares of its preferred stock, Hain
may do so in the future under appropriate circumstances.
Future
Sales or the Perception of Future Sales of Hain’s Common Stock Could Adversely
Affect Hain’s Stock Price.
The
market price of Hain’s common stock could decline as a result of sales of
substantial amounts of Hain’s common stock in the public market, or the
perception that those sales could occur. These sales or the possibility that
they may occur also could make it more difficult for Hain to raise funds in
any
equity offering in the future at a time and price that Hain deems
appropriate.
USE
OF PROCEEDS
Unless
otherwise set forth in a prospectus supplement, we intend to use the net
proceeds of any offering of securities sold for general corporate purposes,
which may include acquisitions, repayment of debt, capital expenditures and
working capital. When a particular series of securities is offered, the
prospectus supplement relating to that offering will set forth our intended
use
of the net proceeds received from the sale of those securities. The net proceeds
may be invested temporarily in short-term marketable securities or applied
to
repay short-term debt until they are used for their stated purpose.
Unless
otherwise set forth in a prospectus supplement, we will not receive any proceeds
in the event that the securities are sold by a selling
securityholder.
-8-
DESCRIPTION
OF SECURITIES
This
prospectus contains summary descriptions of the common stock, preferred stock
and warrants that we or selling securityholders may sell from time to time.
These summary descriptions are not meant to be complete descriptions of each
security. The particular terms of any security will be described in the related
prospectus supplement.
DESCRIPTION
OF COMMON STOCK
General
Our
authorized capital stock consists of 100,000,000 shares of common stock, $.01
par value per share, and 5,000,000 shares of preferred stock, $.01 par value
per
share. As of February 2, 2005, there were 38,096,572 shares of our common stock
outstanding.
The
following description is qualified in all respects by reference to our amended
and restated certificate of incorporation and our amended and restated
bylaws.
Common
Stock
Each
share of common stock entitles the holder thereof to one vote on all matters
submitted to a vote of the stockholders. Since the holders of common stock
do
not have cumulative voting rights, holders of more than 50% of the outstanding
shares can elect all of our directors then being elected and holders of the
remaining shares by themselves cannot elect any directors. The holders of common
stock do not have preemptive rights or rights to convert their common stock
into
other securities. Holders of common stock are entitled to receive ratably such
dividends as may be declared by our board of directors out of funds legally
available therefor. In the event of our liquidation, dissolution or winding
up,
holders of the common stock have the right to a ratable portion of the assets
remaining after payment of liabilities. All outstanding shares of common stock
are fully paid and nonassessable.
Certificate
of Incorporation and Bylaws
Pursuant
to the Delaware General Corporation Law, or the “DGCL,”
the
power to adopt, amend and repeal bylaws is conferred solely upon the
stockholders unless the corporation’s certificate of incorporation also confers
such power upon the board of directors. Under our amended and restated
certificate of incorporation, our board of directors is granted the power to
amend our amended and restated bylaws. Our amended and restated bylaws provide
that each director has one vote on each matter for which directors are entitled
to vote. Our amended and restated certificate of incorporation and/or amended
and restated bylaws also provide that (1) from time to time, by resolution,
our board of directors has the power to change the number of directors,
(2) the directors will hold office until the next annual meeting of
stockholders and until their respective successors are elected and qualified,
and (3) special meetings of stockholders may only be called by our board of
directors or certain of our officers. These provisions, in addition to the
existence of authorized but unissued capital stock, may have the effect, either
alone or in combination with each other, of making more difficult, or
discouraging unsolicited third parties from, an acquisition of us which has
been
deemed undesirable by our board of directors. Our board of directors currently
has twelve members.
-9-
Section
203 of the Delaware Law
Section
203 of the DGCL prohibits a publicly held Delaware corporation from engaging
in
a “business combination” with an “interested stockholder” for a period of three
years after the date of the transaction in which the person became an interested
stockholder, unless (1) prior to the date of the business combination, the
transaction is approved by the board of directors of the corporation;
(2) upon consummation of the transaction which resulted in the stockholder
becoming an interested stockholder, the interested stockholder owned at least
85% of the voting stock outstanding at the time the transaction commenced,
or
(3) on or after such date the business combination is approved by the board
of directors and by the affirmative vote of at least 66-2/3% of the outstanding
voting stock that is not owned by the interested stockholder. A “business
combination” includes mergers, asset sales and other transactions resulting in a
financial benefit to the stockholder. An “interested stockholder” is a person,
who, together with affiliates and associates, owns (or within three years,
did
own) 15% or more of the corporation’s voting stock. This provision of law could
discourage, prevent or delay a change in management or stockholder control
of
us, which could have the effect of discouraging bids and thereby prevent
stockholders from receiving the maximum value for their shares, or a premium
for
their shares in a hostile takeover situation.
Transfer
Agent and Registrar
The
Transfer Agent and Registrar for the common stock is Continental Stock Transfer
& Trust Company, New York, New York.
DESCRIPTION
OF PREFERRED STOCK
We
are
authorized by our amended and restated certificate of incorporation to issue
a
maximum of 5,000,000 shares of preferred stock, in one or more series and
containing such rights, privileges and limitations including voting rights,
dividend rates, conversion privileges, redemption rights and terms, redemption
prices and liquidation preferences, as our board of directors may, from time
to
time, determine. On the date of this prospectus, no shares of our preferred
stock are outstanding.
The
issuance of shares of preferred stock pursuant to our board of directors’
authority described above could decrease the amount of earnings and assets
available for distribution to holders of common stock, and otherwise adversely
affect the rights and powers, including voting rights, of such holders and
may
have the effect of delaying or preventing us from being subject to a change
in
control. See “Risk Factors — Hain’s Ability To Issue Preferred Stock May Deter
Takeover Attempts.” We are not required by the DGCL to seek stockholder approval
prior to any issuance of authorized but unissued stock and our board of
directors does not currently intend to seek stockholder approval prior to any
issuance of authorized but unissued stock, unless otherwise required by
law.
The
prospectus supplement relating to any series of preferred stock that we may
offer will contain the specific terms of the preferred stock. These terms may
include the following:
| · |
the
title of the series and the number of shares in the series;
|
| · |
the
price at which the preferred stock will be offered;
|
| · |
the
dividend rate or rates or method of calculating the rates, the dates
on
which the dividends will be payable, whether or not dividends will
be
cumulative or non-cumulative and, if cumulative, the dates from which
dividends on the preferred stock being offered will cumulate;
|
-10-
| · |
the
voting rights, if any, of the holders of shares of the preferred
stock
being offered;
|
| · |
the
provisions for a sinking fund, if any, and the provisions for redemption,
if applicable, of the preferred stock being offered;
|
| · |
the
liquidation preference per share;
|
| · |
the
terms and conditions, if applicable, upon which the preferred stock
being
offered will be convertible into our common stock, including the
conversion price, or the manner of calculating the conversion price,
and
the conversion period;
|
| · |
the
terms and conditions, if applicable, upon which the preferred stock
being
offered will be exchangeable for debt securities, including the exchange
price, or the manner of calculating the exchange price, and the exchange
period;
|
| · |
any
listing of the preferred stock being offered on any securities exchange;
|
| · |
whether
interests in the shares of the series will be represented by depositary
shares;
|
| · |
a
discussion of any material U.S. federal income tax considerations
applicable to the preferred stock being offered;
|
| · |
the
relative ranking and preferences of the preferred stock being offered
as
to dividend rights and rights upon liquidation, dissolution or the
winding
up of our affairs;
|
| · |
any
limitations on the issuance of any class or series of preferred stock
ranking senior or equal to the series of preferred stock being offered
as
to dividend rights and rights upon liquidation, dissolution or the
winding
up of our affairs;
|
| · |
information
with respect to book-entry procedures, if applicable;
and
|
| · |
any
additional rights, preferences, qualifications, limitations and
restrictions of the series.
|
DESCRIPTION
OF WARRANTS
We
may
issue warrants to purchase equity securities. Each warrant will entitle the
holder to purchase for cash the amount of equity securities at the exercise
price stated or determinable in the prospectus supplement for the warrants.
We
may issue warrants independently or together with any offered securities. The
warrants may be attached to or separate from those offered securities. We will
issue the warrants under warrant agreements to be entered into between us and
a
bank or trust company, as warrant agent, all as described in the applicable
prospectus supplement. The warrant agent will act solely as our agent in
connection with the warrants and will not assume any obligation or relationship
of agency or trust for or with any holders or beneficial owners of
warrants.
The
prospectus supplement relating to any warrants that we may offer will contain
the specific terms of the warrants. These terms may include the following:
| · |
the
title of the warrants;
|
| · |
the
price or prices at which the warrants will be issued;
|
| · |
the
designation, amount and terms of the securities for which the warrants
are
exercisable;
|
| · |
the
designation and terms of the other securities, if any, with which
the
warrants are to be issued and the number of warrants issued with
each
other security;
|
| · |
the
aggregate number of warrants;
|
| · |
any
provisions for adjustment of the number or amount of securities receivable
upon exercise of the warrants or the exercise price of the warrants;
|
| · |
the
price or prices at which the securities purchasable upon exercise
of the
warrants may be purchased;
|
-11-
| · |
the
date on and after which the warrants and the securities purchasable
upon
exercise of the warrants will be separately transferable, if applicable;
|
| · |
a
discussion of any material U.S. federal income tax considerations
applicable to the exercise of the warrants;
|
| · |
the
date on which the right to exercise the warrants will commence, and
the
date on which the right will expire;
|
| · |
the
maximum or minimum number of warrants that may be exercised at any
time;
|
| · |
information
with respect to book-entry procedures, if any;
and
|
| · |
any
other terms of the warrants, including terms, procedures and limitations
relating to the exchange and exercise of the
warrants.
|
LEGAL
MATTERS
The
validity of the securities has been passed upon for us by Cahill Gordon &
Reindel LLP,
New
York, New York. Cahill Gordon & Reindel LLP
acts as
our regular outside counsel. Roger Meltzer, a partner of Cahill Gordon &
Reindel LLP,
is also
a member of our board of directors. Mr. Meltzer receives compensation as a
board member.
EXPERTS
The
consolidated financial statements of Hain appearing in its Annual Report on
Form
10-K for the year ended June 30, 2005 (including the schedule appearing
therein), Amendment No. 1 to its Annual Report on Form 10-K for the year ended
June 30, 2005 (including the schedule appearing therein), and Hain’s
management’s assessment of the effectiveness of internal control over financial
reporting as of June 30, 2005 included therein, have been audited by Ernst
&
Young LLP, independent registered public accounting firm, as set forth in their
reports thereon, included therein, and incorporated herein by reference. Such
consolidated financial statements and management’s assessment are incorporated
herein by reference in reliance upon such reports given on the authority of
such
firm as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We
are a
Delaware corporation. Our principal executive offices are located at 58 South
Service Road, Melville, NY 11747, and our telephone number is (631)
730-2200.
We
file
annual, quarterly and current reports, proxy statements and other information
with the SEC. You may read and copy any reports, statements or other information
that we file at the SEC’s public reference room at 100 F Street, N.E.,
Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference room. Our public filings are also available
to the public from commercial document retrieval services, at the Internet
Web
site maintained by the SEC at www.sec.gov,
and on
our web site, www.hain-celestial.com.
The
information on our web site is not part of this prospectus.
Our
common stock is quoted on Nasdaq under the symbol “HAIN.” You may inspect
reports and other information concerning us at the offices of the National
Association of Securities Dealers, Inc., 1735 K Street, N.W., Washington, D.C.
20016.
The
SEC
allows us to “incorporate by reference” information into this prospectus, which
means that we can disclose important information to you by referring you to
those documents filed separately
-12-
with
the
SEC. The information incorporated by reference is considered part of this
prospectus, except for any information superseded by information contained
directly in this prospectus. Information that we file later with the SEC will
automatically update and supersede this information. This prospectus
incorporates by reference the documents described below that we previously
filed
with the SEC. These documents contain important information about us and our
financial condition.
The
following documents listed below that we have previously filed with the SEC
are
incorporated by reference:
| · |
our
annual report on Form 10-K filed with the SEC for the fiscal year
ended
June 30, 2005;
|
| · |
Amendment
No. 1 to our annual report on Form 10-K filed with the SEC for the
fiscal
year ended June 30, 2005;
|
| · |
our
quarterly reports on Form 10-Q filed with the SEC for the fiscal
quarters
ended September 30, 2005 and December 31,
2005;
|
| · |
our
current reports on Form 8-K filed with the SEC on August 26, 2005,
November 4, 2005, December 8, 2005 and December 19,
2005;
|
| · |
our
current report on Form 8-K/A (Amendment No. 1) filed with the SEC
on
December 20, 2005;
|
| · |
our
revised definitive proxy statement on Schedule 14A filed with the
SEC on
October 31, 2005; and
|
| · |
the
description of our common stock contained in our registration statement
on
Form 8-A/A dated November 12, 1993 and any amendment or report filed
for
the purpose of updating such description.
|
All
documents that we file pursuant to Sections 13(a), 13(c), 14 or 15(d) under
the
Exchange Act shall also be deemed to be incorporated by reference in this
prospectus, unless otherwise provided in the relevant document. These additional
documents include periodic reports, such as Annual Reports on Form 10-K,
Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as
well as proxy statements.
Upon
request, we will provide without charge to each person to whom a prospectus
is
delivered, including any beneficial owner, a copy of any or all of the
information that has been incorporated by reference in this prospectus. If
you
would like to obtain this information from us, please direct your request,
either in writing or by telephone, to
The
Hain
Celestial Group, Inc.
Attention:
Investor Relations
58
South
Service Road
Melville,
New York, 11747
(631)
730-2200
The
Hain
Celestial Group, Inc., the Hain logos and all other Hain product and service
names are registered trademarks or trademarks of The Hain Celestial Group,
Inc.
in the USA and in other select countries. “®” and “™” indicate USA registration
and USA trademark, respectively. Other third party logos and product/trade
names
are registered trademarks or trade names of their respective
companies.
-13-
|
The
Hain Celestial Group, Inc.
Common
Stock
Preferred
Stock
Warrants
_______________
PROSPECTUS
________________
March
3, 2006
|
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. OTHER
EXPENSES OF ISSUANCE AND DISTRIBUTION.
The
expenses relating to the registration of the securities will be borne by the
registrant. Such expenses are estimated to be as follows:
|
Securities
and Exchange Commission Registration Fee
|
$
|
*
|
|
Legal
Fees and Expenses
|
25,000
|
|
|
Accounting
Fees and Expenses
|
10,000
|
|
|
Miscellaneous
|
5,000
|
|
|
Total
|
$
|
40,000
|
*
Deferred in reliance on Rule 456(b) and 457(r)
Item
15. INDEMNIFICATION
OF DIRECTORS AND OFFICERS.
Delaware
Law.
Section
145 of the Delaware General Corporation Law, or the “DGCL,”
provides that a corporation may indemnify a director or officer under certain
circumstances.
Section
145(a) of the DGCL provides that a corporation may indemnify a director,
officer or other employee or individual made, or threatened to be made, a party
to any threatened, pending or completed action other than a derivative action,
whether civil or criminal, against expenses (including attorneys’ fees),
judgments, fines, amounts paid in settlement actually and reasonably incurred
as
a result of such action, if such director, officer or other employee or
individual acted in good faith for a purpose which such person reasonably
believed to be in, or not opposed to, the best interests of the corporation
and,
in criminal actions or proceedings, in addition, has no reasonable cause to
believe that such person’s conduct was unlawful.
Section
145(b) of the DGCL provides that a corporation may indemnify a director,
officer or other employee or individual, made or threatened to be made a party
in a derivative action, against expenses (including attorneys fees) actually
and
reasonably incurred by such person in connection with the defense or settlement
of such action, if such person acted in good faith and in a manner such person
reasonably believed to be in, or not opposed to, the best interests of the
corporation, except that no indemnification will be made in respect of any
claim
as to which such person shall have been adjudged liable to the corporation,
unless and only to the extent that the Court of Chancery or the court in which
the action was brought determines, upon application, that, in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses as the Court of Chancery or such other court deems
proper.
Section
145(c) of the DGCL provides that indemnification by a corporation is mandatory
in any case in which a present or former director or officer has been
successful, whether on the merits or otherwise, in defending an action. In
the
event that the director or officer has not been successful or the
II-1
action
is
settled, indemnification must be authorized by the appropriate corporate action
as set forth in Section 145(d).
Section
145(d) of the DGCL specifies the manner in which payment of indemnification
under Section 145(a) of the DGCL or indemnification permitted under Section
145(b) of the DGCL may be authorized by the corporation.
Section
145(g) of the DGCL authorizes the purchase and maintenance of insurance to
indemnify directors, officers, employees or agents in instances in which they
may be indemnified by a corporation under such section.
Hain’s
Certificate of Incorporation and Bylaws. Article
Tenth of the Amended and Restated Certificate of Incorporation and Article
VI of
the Amended and Restated Bylaws of Hain permit Hain to indemnify its directors,
officers and corporate personnel to the full extent permitted by Section 145
of
the DGCL, as the same may be supplemented or amended from time to
time.
Insurance.
Hain
has also purchased liability insurance policies covering Hain directors and
officers.
Item
16. EXHIBITS.
The
exhibits to this registration statement are listed in the exhibit index, which
appears elsewhere herein and is incorporated herein by reference.
Item
17. UNDERTAKINGS.
The
undersigned registrant hereby undertakes:
(1)
to
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i)
to
include any prospectus required by section 10(a)(3) of the Securities Act of
1933;
(ii)
to
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement. Notwithstanding
the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective
registration statement.
II-2
(iii)
to
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
provided,
however, that the undertakings set forth in paragraphs (i), (ii) and (iii)
above
do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished
to
the Commission by the registrant pursuant to section 13 or section 15(d) of
the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement, or is contained in a form of prospectus filed pursuant
to Rule 424(b) that is part of the registration statement.
(2)
that,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3)
to
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(4)
that,
for the purpose of determining liability under the Securities Act of 1933 to
any
purchaser:
(A)
each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed
to
be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(B)
each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7)
as
part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose
of
providing the information required by Section 10(a) of the Securities Act of
1933 shall be deemed to be part of and included in the registration statement
as
of the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an underwriter,
such
date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that time shall
be
deemed to be the initial bona
fide offering
thereof. Provided,
however,
that no
statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of
the
registration statement will, as to a purchaser with a time of contract of sale
prior to such effective date, supersede or modify any statement that was made
in
the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective
date.
(5)
that,
for the purpose of determining liability of the registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities:
the
undersigned registrant undertakes that in a primary offering of securities
of
the undersigned registrant pursuant to this
II-3
registration
statement, regardless of the underwriting method used to sell the securities
to
the purchaser, if the securities are offered or sold to such purchaser by means
of any of the following communications, the undersigned registrant will be
a
seller to the purchaser and will be considered to offer or sell such securities
to such purchaser:
(i) any
preliminary prospectus or prospectus of the undersigned registrant relating
to
the offering required to be filed pursuant to Rule 424;
(ii) any
free
writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned registrant;
(iii) the
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv) any
other
communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(6)
that,
for purposes of determining any liability under the Securities Act of 1933,
each
filing of the registrant’s annual report pursuant to section 13(a) or section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan’s annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933
may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication
of
such issue.
II-4
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Melville, state of New York, on March 3,
2006.
THE
HAIN
CELESTIAL GROUP, INC.
By: /s/
Ira J. Lamel
Name: Ira
J.
Lamel
Title: Executive
Vice President, Chief
Financial
Officer and Treasurer
Officer and Treasurer
II-5
SIGNATURES
AND POWER
OF ATTORNEY
Each
person whose signature appears below in so signing also makes, constitutes
and
appoints Irwin D. Simon and Ira J. Lamel, and each of them acting alone, his
true and lawful attorney-in-fact, with full power of substitution and
resubstitution, in his name and on his behalf, in any and all capacities, this
registration statement on Form S-3 and any amendments thereto (and any
additional registration statement related thereto permitted by Rule 462(b)
promulgated under the Securities Act of 1933 (and all further amendments,
including post-effective amendments thereto)) necessary or advisable to enable
the registrant to comply with the Securities Act of 1933 and any rules,
regulations and requirements of the Securities and Exchange Commission, in
respect thereof, in connection with the registration of the securities which
are
the subject of such registration statement, which amendments may make such
changes in such registration statement as such attorney may deem appropriate,
and with full power and authority to perform and do any and all acts and things
whatsoever which any such attorney or substitute may deem necessary or advisable
to be performed or done in connection with any or all of the above-described
matters, as fully as each of the undersigned could do if personally present
and
acting, hereby ratifying and approving all acts of any such attorney or
substitute
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration
Statement has been signed on March 3, 2006 by the following persons in the
capacities indicated.
|
Name
|
Title
|
|
/s/
Irwin D. Simon
Irwin
D. Simon
|
Chairman
of the Board, President and Chief Executive Officer
(Principal
Executive Officer)
|
|
/s/
Ira J. Lamel
Ira
J. Lamel
|
Executive
Vice President, Chief Financial Officer and Treasurer
(Principal
Financial and Accounting Officer)
|
|
/s/
Barry J. Alperin
Barry
J. Alperin
|
Director
|
|
________________
Beth
L. Bronner
|
Director
|
|
/s/
Jack Futterman
Jack
Futterman
|
Director
|
|
________________
Daniel
R. Glickman
|
Director
|
|
/s/
Marina Hahn
Marina
Hahn
|
Director
|
|
_________________
Andrew
R. Heyer
|
Director
|
|
/s/
Roger Meltzer
Roger
Meltzer
|
Director
|
|
/s/
Mitchell A. Ring
Mitchell
A. Ring
|
Director
|
|
__________________
Lewis
D. Schiliro
|
Director
|
|
/s/
D. Edward I. Smyth
D.
Edward I. Smyth
|
Director
|
|
/s/
Larry S. Zilavy
Larry
S. Zilavy
|
Director
|
II-6
INDEX
TO EXHIBITS
|
Exhibit
No.
|
Description
|
|
1
|
Form
of underwriting agreement (a)
|
|
3.1
|
Amended
and Restated Certificate of Incorporation of Hain (incorporated by
reference to Exhibit 3.1 of Amendment No. 1 to Hain’s Registration
Statement on Form S-4 (Commission File No. 333-33830) filed with
the
Commission on April 24, 2000).
|
|
3.2
|
Amended
and Restated Bylaws of Hain (incorporated by reference to Exhibit
3.2 of
Amendment No. 1 to Hain’s Registration Statement on Form S-4
(Commission File No. 333-33830) filed with the Commission on April
24, 2000).
|
|
4.1
|
Specimen
of Hain common stock certificate (incorporated by reference to Exhibit
4.1
of Amendment No. 1 to Hain’s Registration Statement on Form S-4
(Commission File No. 333-33830) filed with the Commission on April
24,
2000).
|
|
4.2
|
Form
of Warrant Agreement. (a)
|
|
4.3
|
Form
of Warrant Certificate. (a)
|
|
5
|
Opinion
of Cahill Gordon & Reindel LLP
regarding the legality of the securities being registered.
(b)
|
|
23.1
|
Consent
of Ernst & Young LLP, Independent Registered Public Accountants.
(b)
|
|
23.2
|
Consent
of Cahill Gordon & Reindel LLP
(included in Exhibit 5). (b)
|
|
24
|
Powers
of Attorney (included on the signature pages to this Registration
Statement).
|
—————
|
(a)
|
to
be filed by post-effective amendment or as an exhibit to a Current
Report
on Form 8-K and incorporated herein by
reference
|
|
(b)
|
filed
herewith
|
Exhibit
5
Cahill
Gordon & Reindel LLP
80 Pine Street
80 Pine Street
New
York,
New York 10005
March
3,
2006
Securities
and Exchange Commission
100
F
Street, N.E.
Washington,
D.C. 20549
|
Re:
|
The
Hain Celestial Group, Inc.
|
Registration Statement on Form S-3
Ladies
and Gentlemen:
We
have
acted as special counsel to The Hain Celestial Group, Inc. (the “Company”)
in
connection with the preparation of the Company’s Registration Statement on Form
S-3 to be filed with the Securities and Exchange Commission (the “Commission”)
on the
date hereof (the “Registration
Statement”),
with
respect to the issuance and/or sale from time to time of an indeterminate number
of (i) shares of Common Stock, par value $.01 per share (the “Common
Stock”),
(ii)
shares of Preferred Stock, par value $.01 per share (the “Preferred
Stock”),
and
(iii) warrants to purchase equity securities (the “Warrants”).
The
Common Stock, the Preferred Stock and the Warrants are referred to herein
collectively as the “Offered
Securities.”
The
Offered Securities being registered under the Registration Statement may be
offered on a continued or delayed basis pursuant to the provisions of Rule
415
of the Securities Act of 1933, as amended (the “Securities
Act”)
by the
Company or by selling securityholders.
In
rendering the opinion set forth herein, we have examined originals, photocopies
or conformed copies certified to our satisfaction of all such corporate records,
agreements, instruments and documents of the Company, certificates of public
officials and other certificates and opinions, and we have made such other
investigations, as we have deemed necessary in connection with the opinions
set
forth herein. In our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals
and
the conformity to originals of all documents submitted to us as photocopies
or
conformed copies.
Based
upon and subject to the foregoing and assuming that (i) the Registration
Statement and any amendments thereto (including any post-effective amendments)
will have become effective and comply with all applicable laws and no stop
order
suspending the Registration Statement’s effectiveness will have been issued and
remain in effect, in each case, at the time the Offered Securities are offered
or issued as contemplated by the Registration Statement, (ii) a prospectus
supplement will have been prepared and filed with the Commission describing
the
Offered Securities offered thereby and will at all relevant times comply with
all applicable laws, (iii) all Offered Securities will be issued and sold in
compliance with applicable federal and state securities laws and in the manner
stated in the Registration Statement and the appropriate prospectus supplement,
(iv) a
definitive
purchase, underwriting or similar agreement and any other necessary agreement
with respect to any Offered Securities will have been duly authorized and
validly executed and delivered by the Company and the other party or parties
thereto, (v) the board of directors, including any appropriate committee
appointed thereby, and appropriate officers of the Company have taken all
necessary action to approve the issuance and terms of the Offered Securities
and
related matters, (vi) any Offered Securities issuable upon conversion, exercise
or exchange of any Offered Securities being offered or issued will be duly
authorized, created and, if appropriate, reserved for issuance upon such
conversion, exercise or exchange, and (vii) prior to any issuance of Preferred
Stock, appropriate certificates of designation will be accepted for recording
by
the Secretary of State of the State of Delaware, we advise you that in our
opinion:
1. Assuming
(A) the Company has received the consideration therefor specified in any
applicable underwriting agreement or purchase agreement approved by the
Company's board of directors, (B) in the case of any Common Stock to be issued
under any Warrants, upon due exercise of any payment of the exercise price
specified in such Warrants, and (C) in the case of any Common Stock to be issued
upon the exchange or conversion of Preferred Stock that are exchangeable for
or
convertible into Common Stock, due exercise of such exchange or conversion
rights in accordance with the terms of the applicable instruments, the Common
Stock (including any Common Stock duly issued upon the exchange or conversion
of
Preferred Stock that are exchangeable for or convertible into Common Stock
or
upon the exercise of Warrants) will be validly issued, fully paid and
nonassessable.
2. Assuming
that (A) the Company has filed an appropriate certificate of designation with
respect to such Preferred Stock, (B) the Company has received the consideration
therefor specified in any applicable underwriting agreement or purchase
agreement approved by the Company's board of directors, and (C) in the case
of
any Preferred Stock to be issued under any Warrants, upon due exercise of any
payment of the exercise price specified in such Warrants, the Preferred Stock
(including any shares of Preferred Stock that are duly issued upon the exercise
of such Warrants) will be validly issued, fully paid and
nonassessable.
3.
Assuming
(A) the execution of the warrant agreement pursuant to which the Warrants will
be issued (the “Warrant
Agreement”)
has
been duly authorized by the Company by appropriate action, (B) the Warrant
Agreement has been duly executed and delivered by the Company and the warrant
agent thereunder, and (C) the Warrants, in the form included in the Warrant
Agreement, have been duly executed and delivered by the Company and
countersigned by the warrant agent thereunder pursuant to the Warrant Agreement
and delivered and paid for as contemplated by any applicable purchase or
underwriting agreement and the Registration Statement, the Warrants will
constitute valid and legally binding obligations of the Company, enforceable
against the Company in accordance with its terms, except that (a) the
enforceability thereof may be subject to (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws now
or
hereafter in effect relating to or affecting creditors’ rights or remedies
generally and (ii) general principles of equity and to the discretion of the
court before which any proceedings therefor may be brought (regardless of
whether enforcement is sought in a proceeding at law or in equity) and (b)
the
enforceability of provisions imposing liquidated damages, penalties or an
increase in interest rate upon the occurrence of certain events may be limited
in certain circumstances.
We
are
members of the bar of the State of New York, and in rendering this opinion
we
express no opinion as to the laws of any jurisdiction other than the laws of
the
State of New York, the General Corporation Law of the State of Delaware and
the
Federal laws of the United States of America.
We
hereby
consent to the use of our firm’s name under the caption “Legal Matters” and to
the filing of a copy of this opinion with the Commission as an exhibit to the
Registration Statement referred to above. Our consent to such reference does
not
constitute a consent under Section 7 of the Securities Act, as in consenting
to
such reference we have not certified any part of the Registration Statement
and
do not otherwise come within the categories of persons whose consent is required
under Section 7 of the Securities Act or under the rules and regulations of
the
Commission thereunder.
Very truly yours,
/s/ Cahill Gordon & Reindel LLP
Exhibit
23.1
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTANTS
We
consent to the reference to our firm under the caption “Experts” in the
Registration Statement (Form S-3 No.
333- ) and related Prospectus of The
Hain Celestial Group, Inc. for the registration of its common stock, preferred
stock and warrants and to the incorporation by reference therein of our reports
dated August 31, 2005, with respect to the consolidated financial statements
and
schedule of The Hain Celestial Group, Inc. and Subsidiaries, The Hain Celestial
Group Inc.’s management’s assessment of the effectiveness of internal control
over financial reporting, and the effectiveness of internal control over
financial reporting of The Hain Celestial Group, Inc. and Subsidiaries included
in its Annual Report on Form 10-K for the year ended June 30, 2005 and Amendment
No. 1 to its Annual Report on Form 10-K for the year ended June 30, 2005, filed
with the Securities and Exchange Commission.
/s/
ERNST
& YOUNG LLP
Melville,
New York
March
3,
2006