SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No.2)*
The Hain Celestial Group, Inc.
(Name of Issuer)
Common Stock, Par Value $0.01
(Title of Class of Securities)
405217100
(CUSIP Number)
Marc Weitzen
Icahn Capital LP
767 Fifth Avenue, 47th Floor
New York, New York 10153
(212) 702-4300
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
July 7, 2010
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Section 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box / /.
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7 for other parties
to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
SCHEDULE 13D
Item 1. Security and Issuer
The Schedule 13D filed with the Securities and Exchange Commission on May
13, 2010, and as amended by the Amendment Number One to the Schedule 13D filed
on May 24, 2010 by the Reporting Persons (together, the "Schedule 13D") with
respect to the shares of Common Stock, par value $0.01 (the "Shares") issued by
The Hain Celestial Group, Inc. (the "Issuer") is hereby amended to furnish the
additional information set forth herein. All capitalized terms contained herein
but not otherwise defined shall have the meanings ascribed to such terms in the
Schedule 13D.
Item 4. Purpose of Transaction
Item 4 of the Schedule 13D is hereby amended by the addition of the
following:
After conversations between representatives of the Reporting Persons and of
the Issuer, the Issuer and Reporting Persons entered into an agreement dated
July 7, 2010, a copy of which is attached hereto as Exhibit I and incorporated
herein by reference. The Issuer announced on July 7, 2010 that it appointed to
its board of directors Brett Icahn and David Schechter and further agreed to
include Brett Icahn and David Schechter on management's slate of nominees for
director at the 2010 Annual Meeting. The Reporting Persons agreed, among other
things, that they would vote their Shares at that meeting for management's slate
that would include up to eight additional persons being nominated by the Issuer,
and would not otherwise solicit proxies in connection with the 2010 Annual
Meeting.
In connection with the agreement, Carl Icahn stated that: "Hain has a
strong portfolio of brands that position it well for a continuing secular shift
towards organic and all natural foods and consumer packaged goods. We look
forward to working with the current board and management toward enhancing
stockholder value."
The Reporting Persons may, from time to time and at any time, acquire
additional Shares and/or other equity, debt, notes, instruments or other
securities (collectively, "Securities") of the Issuer in the open market or
otherwise. The Reporting Persons reserve the right to dispose of any or all of
their Securities in the open market or otherwise, at any time and from time to
time, and to engage in any hedging or similar transactions with respect to the
Securities.
Item 6. Contracts, Arrangements, Understandings or Relationship with Respect to
Securities of the Issuer
Item 6 of the Schedule 13D is hereby amended by the addition of the
following:
On July 7, 2010, the Reporting Persons and the Issuer entered into an
agreement (a copy of which is attached hereto as Exhibit I and incorporated
herein by reference) relating to the appointment and nomination of directors at
the Issuer's 2010 Annual Meeting. See Item 4 for further detail.
Item 7. Material to be Filed as Exhibits
1 Agreement between the Reporting Persons and the Issuer dated as
of July 7, 2010.
SIGNATURE
After reasonable inquiry and to the best of each of the undersigned
knowledge and belief, each of the undersigned certifies that the information set
forth in this statement is true, complete and correct.
Dated: July 7, 2010
ICAHN PARTNERS MASTER FUND LP
ICAHN PARTNERS MASTER FUND II LP
ICAHN PARTNERS MASTER FUND III LP
ICAHN OFFSHORE LP
ICAHN PARTNERS LP
ICAHN ONSHORE LP
BECKTON CORP.
HOPPER INVESTMENTS LLC
BARBERRY CORP.
HIGH RIVER LIMITED PARTNERSHIP
By: Hopper Investments LLC, general partner
By: /s/ Edward E. Mattner
------------------------
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN CAPITAL LP
By: IPH GP LLC, its general partner
By: Icahn Enterprises Holdings L.P., its sole member
By: Icahn Enterprises G.P. Inc., its general partner
IPH GP LLC
By: Icahn Enterprises Holdings L.P., its sole member
By: Icahn Enterprises G.P. Inc., its general partner
ICAHN ENTERPRISES HOLDINGS L.P.
By: Icahn Enterprises G.P. Inc., its general partner
ICAHN ENTERPRISES G.P. INC.
By: /s/ Keith A. Meister
--------------------
Name: Keith A. Meister
Title: Principal Executive Officer
/s/ Carl C. Icahn
- --------------------
CARL C. ICAHN
[Signature Page of Schedule 13D Amendment No. 2 -
The Hain Celestial Group, Inc.
Re: Appointment of Brett Icahn and David Schechter as Directors]
EXECUTION COPY
AGREEMENT
---------
This Agreement dated July 7, 2010 (this "Agreement"), is by and among the
persons and entities listed on Schedule A (collectively, the "Icahn Group", and
individually a "member" of the Icahn Group) and The Hain Celestial Group, Inc.
(the "Company").
In consideration of and reliance upon the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Board and Committee Representation. The Company agrees:
(a) (i) upon execution of this Agreement, to appoint Brett Icahn and David
Schechter to the board of directors of the Company (the "Board") and (ii) prior
to the announcement of management's and the Company's slate of nominees for
election as directors of the Company at the Company's 2010 annual meeting of
stockholders (the "2010 Annual Meeting") (A) to notify the Icahn Group in
writing that two incumbent directors of the Board will not stand for re-election
at the 2010 Annual Meeting and (B) to reduce the size of the Board to ten (10)
directors;
(b) upon execution of this Agreement, if it does not already exist, to
create a committee of the Board for the purpose of considering strategic or
other significant transactions (the "Strategic Transaction Committee"), and at
all times, to include the two Icahn Suggested Nominees (as defined below) on the
Strategic Transaction Committee (and such other committee formed, from time to
time, for the purpose of considering strategic or other significant
transactions), which such committee may be composed of either four (4) or five
(5) directors; provided, however, that if it is composed of five (5) directors,
then one of the Icahn Suggested Nominees shall serve as the chairman of such
committee;
(c) upon execution of this Agreement and at all times thereafter, to
include one of the Icahn Suggested Nominees on the Board's Compensation
Committee;
(d) to include Brett Icahn and David Schechter or their respective
Replacements (as hereinafter defined) (each, an "Icahn Suggested Nominee", and
collectively, the "Icahn Suggested Nominees") in management's and the Company's
slate of nominees for election as directors of the Company at the 2010 Annual
Meeting;
(e) that to the extent either of Brett Icahn or David Schechter (or their
respective Replacements) is unable to serve as a nominee for election as
director or to serve as a director, for any reason, the Icahn Group shall have
the right to submit the name of a replacement (the "Replacement") to the Company
for its reasonable approval and who shall serve as the nominee for election as
director or serve as director. If the proposed Replacement is not approved by
the Company, the Icahn Group shall have the right to submit another proposed
Replacement to the Company for its reasonable approval. The Icahn Group shall
have the right to continue submitting the name of a proposed Replacement to the
Company for its reasonable approval until the Company approves that such
Replacement may serve as a nominee for election as director or to serve as a
director whereupon such person is appointed as the Replacement;
(f) to use best efforts to cause the election of the Icahn Suggested
Nominees to the Board at the 2010 Annual Meeting (including recommending that
the Company's stockholders vote in favor of the election of the Icahn Suggested
Nominees and otherwise supporting them for election in a manner no less rigorous
and favorable than the manner in which the Company supports its other nominees
in the aggregate); and
(g) that the Company shall be relieved of its obligations set forth in this
Section 1 in the event that the Icahn Group ceases to be the beneficial owner
(as defined in Rule 13d-3 promulgated under the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) of the lesser of at least (x) 10% of the
outstanding common stock, par value $0.01, of the Company (the "Common Stock")
and (y) 4,094,963 shares of Common Stock.
2. Delaware 203; Poison Pill; Independence. The Company and the Board:
(a) hereby approve the Icahn Group becoming the beneficial owner of 15%,
but not more than 20%, of the Common Stock on the condition that the parties
hereby agree that the definition of "interested stockholder" in Section 203, as
amended ("Section 203") of the General Corporation Law of the State of Delaware
("DGCL") is deemed amended to substitute 20% for 15% wherever 15% appears in
said definition, and Section 203, as so deemed amended, is deemed applicable to,
and in full force and effect, for the Icahn Group and the Company;
(b) agree that as long as the Icahn Group is the beneficial owner of the
lesser of at least (x) 10% of the Company's outstanding Common Stock and (y)
4,094,963 shares of Common Stock, the Company shall not (i) adopt, or propose to
adopt, any rights agreement or poison pill that restricts, or in any other way,
limits the beneficial ownership of Common Stock at or below 20% of the
outstanding shares of Common Stock; (ii) propose, or announce a proposal, to
amend its Certificate of Incorporation or bylaws or any other applicable
agreement or document or take any other action that would adopt or strengthen
provisions that (A) create a classified (staggered) board of directors pursuant
to Section 141(d) of the DGCL, (B) limit stockholder rights to call special
meetings, (C) restrict stockholder rights to act by written consent, (D) require
a supermajority vote to approve mergers and/or the sale of assets, (E) issue any
preferred stock or (F) require advance notice of stockholder intent to nominate
directors or propose other matters for a vote by stockholders; (iii) prior to
the 2010 Annual Meeting, increase the size of the Board above twelve (12)
directors; (iv) at and after the 2010 Annual Meeting, increase the size of the
Board above ten (10) directors; or (v) take any other extraordinary corporate
action that would have the effect of materially frustrating a proxy contest; and
(c) represent that for purposes of Nasdaq listing requirements, the Board
has considered the independence of Brett Icahn and David Schechter, and has made
an affirmative determination that neither Brett Icahn nor David Schechter have
any relationship with the Company that would impair their independence, and as
such, that upon their appointment to the Board, both Brett Icahn and David
Schechter are "independent directors" as defined in the Nasdaq Corporate
Governance Requirements.
3. Resignation; Disclosure of Material Non-Public Information. The Company
agrees that:
(a) At any time, for any reason or for no reason, the Icahn Suggested
Nominees may immediately resign from the Board by providing written notice to
the Chairman of the Board (a "Resignation Notice");
(b) By no later than the filing deadline (without any extensions) for the
Company's annual or quarterly report, as the case may be, filed with the
Securities and Exchange Commission (the "SEC") pursuant to the Exchange Act for
the reporting period in which such Resignation Notice is received (the
"Disclosure Deadline"), the Company shall (i) publicly disclose all and any
material non-public information received or otherwise made known to any of the
Icahn Suggested Nominees by, from or on behalf of the Company, or its directors,
officers employees or agents (the "Information") so that the Icahn Suggested
Nominees will no longer be in possession of material, non-public information as
a result of having received such information as members of the Board; (ii)
simultaneously with such disclosure, provide the Icahn Group with written notice
of such disclosure (the "Disclosure Notice") which written notice states that
the Icahn Group is no longer in possession of material, non-public information
as a result of the Icahn Suggested Nominees having served as directors; and
(iii) the Company shall have received and delivered to the Icahn Suggested
Nominees, an opinion (the "Opinion"), which expressly states that it may be
relied upon by the Icahn Suggested Nominees and communicated to the Icahn Group,
from the Company's outside counsel, which has been concurred in by the Company's
general counsel, to the effect that such outside counsel has reviewed with the
Company all of the Information that has been disclosed and that such outside
counsel has made such inquiries as it believes necessary for the purpose of the
Opinion and nothing has come to such outside counsel's attention that would lead
such outside counsel to believe that all of the information required to be
publicly disclosed so that the Icahn Suggested Nominees are no longer possessed
with material non-public information, has not been publicly disclosed; and
(c) To the extent the Company has not delivered the Disclosure Notice and
the Opinion by the Disclosure Deadline, the Company hereby consents that the
Icahn Group may publicly disclose all Information which it or the Icahn
Suggested Nominees possess. This Section 3(c) shall supersede any
confidentiality obligations set forth in the Confidentiality Agreement (as
hereinafter defined), and for the avoidance of doubt, any public disclosure of
the Information by the Icahn Group pursuant to the preceding sentence shall not
be a violation of the Confidentiality Agreement.
4. Proxy Contest and Other Matters.
(a) So long as the Company has complied and is complying with its
obligations set forth in this Agreement, including those obligations set forth
in Sections 1 and 2 hereto, no member of the Icahn Group shall, and each member
of the Icahn Group shall cause each Affiliate (as such term is hereinafter
defined) of any such members (such Affiliates, collectively and individually,
the "Icahn Affiliates") not to, (i) become a "participant" (as such term is
defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the
Exchange Act) in or actively assist any third party in any "solicitation" of
"proxies" (as such terms are defined in Rule 14a-1 promulgated under the
Exchange Act) for use at the 2010 Annual Meeting, (ii) encourage, advise or
influence any other person or assist any third party in so encouraging,
assisting or influencing any person with respect to the giving or withholding of
any proxy vote at the 2010 Annual Meeting in opposition to the Company's slate
of nominees for election as directors of the Company, (iii) present any proposal
for consideration at the 2010 Annual Meeting or (iv) grant any proxy with
respect to the 2010 Annual Meeting (other than to the named proxies included in
the Company's proxy card for the 2010 Annual Meeting, which shall include two
(2) Icahn Suggested Nominees and no more than eight (8) other nominees) or
deposit any of the Common Stock held by the Icahn Group or the Icahn Affiliates
in a voting trust or subject them to a voting agreement or other arrangement of
similar effect with respect to the 2010 Annual Meeting. For purposes of this
Agreement, the term "Affiliate" shall have the meaning set forth in Rule 12b-2
promulgated by the SEC under the Exchange Act, provided that the term Affiliate
shall not include any person that is a publicly held company or that is an
officer or director of such publicly held company; and the terms "person" or
"persons" shall mean any individual, corporation (including not-for-profit),
general or limited partnership, limited liability or unlimited liability
company, joint venture, estate, trust, association, organization or other entity
of any kind or nature; and
(b) So long as the Company has complied and is complying with its
obligations set forth in this Agreement, including those obligations set forth
in Sections 1 and 2 hereto, each member of the Icahn Group shall cause all
shares of Common Stock owned of record and shall instruct the record owner, in
case of all shares of Common Stock beneficially owned, but not owned of record,
directly or indirectly, by it, or by any Icahn Affiliate, as of the record date
for the 2010 Annual Meeting, to be present for quorum purposes and to be voted
at the 2010 Annual Meeting or at any adjournments or postponements thereof, in
favor of the directors nominated by the Board for election at the 2010 Annual
Meeting which shall include two (2) Icahn Suggested Nominees and no more than
eight (8) other nominees.
5. Confidentiality Agreement. The Company hereby agrees that
notwithstanding any policy of the Company, the Icahn Suggested Nominees are
permitted to and may provide confidential information in accordance with the
terms of the confidentiality agreement in the form attached hereto as Exhibit A
(the "Confidentiality Agreement").
6. Public Announcement. The Company and the Icahn Group shall announce this
Agreement and the material terms hereof by means of a press release in the form
attached hereto as Exhibit B as soon as practicable on or after the date hereof.
The Company acknowledges that the Icahn Group will comply with its obligations
under Section 13(d) of the Exchange Act.
7. Representations and Warranties. Each of the parties hereto represents
and warrants to the other party that:
(a) such party has all requisite company authority and power to execute and
deliver this Agreement and to consummate the transactions contemplated hereby;
(b) the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly authorized by
all required company or other action on the part of such party and no other
proceedings on the part of such party are necessary to authorize the execution
and delivery of this Agreement or to consummate the transactions contemplated
hereby;
(c) this Agreement has been duly and validly executed and delivered by such
party and constitutes the valid and binding obligation of such party enforceable
against such party in accordance with its terms; and
(d) this Agreement will not result in a violation of any terms or
provisions of any agreements to which such person is a party or by which such
party may otherwise be bound or of any law, rule, license, regulation, judgment,
order or decree governing or affecting such party.
8. Miscellaneous. The parties hereto shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement exclusively in the Court of Chancery
or other federal or state courts of the State of Delaware, in addition to any
other remedy to which they are entitled at law or in equity. Furthermore, each
of the parties hereto (a) consents to submit itself to the personal jurisdiction
of the Court of Chancery or other federal or state courts of the State of
Delaware in the event any dispute arises out of this Agreement or the
transactions contemplated by this Agreement, (b) agrees that it shall not
attempt to deny or defeat such personal jurisdiction by motion or other request
for leave from any such court, (c) agrees that it shall not bring any action
relating to this Agreement or the transactions contemplated by this Agreement in
any court other than the Court of Chancery or other federal or state courts of
the State of Delaware, and each of the parties irrevocably waives the right to
trial by jury, (d) agrees to waive any bonding requirement under any applicable
law, in the case any other party seeks to enforce the terms by way of equitable
relief and (e) each of the parties irrevocably consents to service of process by
a reputable overnight mail delivery service, signature requested, to the address
of such parties' principal place of business or as otherwise provided by
applicable law. THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING
WITHOUT LIMITATION VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF THE STATE
OF DELAWARE, WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES OF SUCH STATE
THAT WOULD COMPEL THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION.
9. Entire Agreement. This Agreement contains the entire understanding of
the parties with respect to the subject matter hereof and may be amended only by
an agreement in writing executed by the parties hereto.
10. Notices. All notices, consents, requests, instructions, approvals and
other communications provided for herein and all legal process in regard hereto
shall be in writing and shall be deemed validly given, made or served, if (a)
given by telecopy, when such telecopy is transmitted to the telecopy number set
forth below and the appropriate confirmation is received or (b) if given by any
other means, when actually received during normal business hours at the address
specified in this subsection:
if to the Company: The Hain Celestial Group, Inc.
58 South Service Road
Melville, New York 11747
Attention: General Counsel
Facsimile: (631) 730-2259
with a copy to: DLA Piper LLP (US)
1251 Avenue of the Americas
New York, New York, 10020
Attention: Roger Meltzer, Esq.
Facsimile: (212) 335-4501
if to the Icahn Group: Icahn Capital LP
767 Fifth Avenue, 47th Floor
New York, New York 10153
Attention: Marc Weitzen
Facsimile: (212) 688-1158
11. Severability. If at any time subsequent to the date hereof, any
provision of this Agreement shall be held by any court of competent jurisdiction
to be illegal, void or unenforceable, such provision shall be of no force and
effect, but the illegality or unenforceability of such provision shall have no
effect upon the legality or enforceability of any other provision of this
Agreement.
12. Counterparts. This Agreement may be executed in two or more
counterparts (including by facsimile or PDF) which together shall constitute a
single agreement.
13. Successors and Assigns. This Agreement shall not be assignable by any
of the parties to this Agreement but shall be binding on successors of the
parties hereto.
14. No Third Party Beneficiaries. This Agreement is solely for the benefit
of the parties hereto and the Icahn Suggested Nominees and is not enforceable by
any other persons.
15. Fees and Expenses. Neither the Company, on the one hand, nor the Icahn
Group, on the other hand, will be responsible for any fees or expenses of the
other in connection with this Agreement.
16. Interpretation and Construction. Each of the parties hereto
acknowledges that it has been represented by counsel of its choice throughout
all negotiations that have preceded the execution of this Agreement, and that it
has executed the same with the advice of said independent counsel. Each party
and its counsel cooperated and participated in the drafting and preparation of
this Agreement and the documents referred to herein, and any and all drafts
relating thereto exchanged among the parties shall be deemed the work product of
all of the parties and may not be construed against any party by reason of its
drafting or preparation. Accordingly, any rule of law or any legal decision that
would require interpretation of any ambiguities in this Agreement against any
party that drafted or prepared it is of no application and is hereby expressly
waived by each of the parties hereto, and any controversy over interpretations
of this Agreement shall be decided without regards to events of drafting or
preparation.
[Signature Pages Follow]
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement,
or caused the same to be executed by its duly authorized representative as of
the date first above written.
THE HAIN CELESTIAL GROUP, INC.
By: _________________________________________
Name:
Title:
ICAHN PARTNERS MASTER FUND LP
ICAHN PARTNERS MASTER FUND II LP
ICAHN PARTNERS MASTER FUND III LP
ICAHN OFFSHORE LP
ICAHN PARTNERS LP
ICAHN ONSHORE LP
BECKTON CORP.
HOPPER INVESTMENTS LLC
BARBERRY CORP.
HIGH RIVER LIMITED PARTNERSHIP
By: Hopper Investments LLC, general partner
By: ____________________________________
Name: Edward Mattner
Title: Authorized Signatory
ICAHN CAPITAL LP
By: IPH GP LLC, its general partner
By: Icahn Enterprises Holdings L.P., its
sole member
By: Icahn Enterprises G.P. Inc., its
general partner
IPH GP LLC
By: Icahn Enterprises Holdings L.P., its
sole member
By: Icahn Enterprises G.P. Inc., its
general partner
ICAHN ENTERPRISES HOLDINGS L.P.
By: Icahn Enterprises G.P. Inc., its
general partner
ICAHN ENTERPRISES L.P.
By: Icahn Enterprises G.P. Inc., its
general partner
ICAHN ENTERPRISES G.P. INC.
By: _______________________________________
Name: Dominick Ragone
Title: Chief Financial Officer
_____________________________
CARL C. ICAHN
SCHEDULE A
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High River Limited Partnership
Hopper Investments LLC
Barberry Corp.
Icahn Partners Master Fund LP
Icahn Partners Master Fund II LP
Icahn Partners Master Fund III LP
Icahn Offshore LP
Icahn Partners LP
Icahn Onshore LP
Icahn Capital LP
IPH GP LLC
Icahn Enterprises L.P.
Icahn Enterprises Holdings L.P.
Icahn Enterprises G.P. Inc.
Beckton Corp.
Carl C. Icahn
EXHIBIT A
---------
[FORM OF CONFIDENTIALITY AGREEMENT]
THE HAIN CELESTIAL GROUP, INC.
58 South Service Road
Melville, New York 11747
To: [Insert Icahn Group member]
Ladies and Gentlemen:
This letter agreement shall become effective upon the appointment to the Board
of Directors of the Company of the Icahn Suggested Nominees. It results from an
Agreement, dated as of July 7, 2010 (the "Agreement"), by and among The Hain
Celestial Group, Inc. (the "Company") and the Icahn Group (as defined therein).
Capitalized terms used in this letter agreement not otherwise defined herein
shall have the meanings ascribed to such terms in the Agreement.
Among other things, pursuant to the terms of the Agreement, the Icahn Suggested
Nominees will be appointed to the Board and included on the Company's slate of
nominees for election as directors of the Company at the Company's 2010 annual
meeting of stockholders. The Company understands and agrees that, subject to the
terms of, and in accordance with, this letter agreement, each Icahn Suggested
Nominee may, if and to the extent he desires to do so, disclose information he
obtains while serving as a member of the Board to you and your Representatives
(as hereinafter defined) and may discuss such information with such persons,
subject to the terms and conditions of this letter agreement. As a result, you
may receive certain non-public information regarding the Company. You
acknowledge that this information is proprietary to the Company and may include
trade secrets or other business information the disclosure of which could harm
the Company. In consideration for, and as a condition of, non-public information
being furnished to you (and, subject to the restrictions in paragraph 2 below,
your attorneys, advisors, directors, officers, members, partners and employees,
collectively, "Representatives"), you agree to treat any and all information
concerning or relating to the Company or any of its subsidiaries or affiliates
that is furnished to you or your Representatives (regardless of the manner in
which it is furnished, including without limitation in written or electronic
format or orally, gathered by visual inspection or otherwise) by any Icahn
Suggested Nominee, or by or on behalf of the Company, together with any notes,
analyses, reports, models, compilations, studies, interpretations, documents or
records containing, referring, relating to, based upon or derived from such
information, in whole or in part (collectively, "Confidential Information"), in
accordance with the provisions of this letter agreement, and to take or abstain
from taking the other actions hereinafter set forth.
1. The term "Confidential Information" does not include information that
(i) is or has become generally available to the public other than as a result of
a direct or indirect disclosure by you or your Representatives in violation of
this letter agreement or by any Icahn Suggested Nominee in violation of any
contractual, legal or fiduciary obligation to or of the Company, (ii) was within
your or any of your Representatives' possession on a non-confidential basis
prior to its being furnished to any Icahn Suggested Nominee by or on behalf of
the Company or its Representative or to you by any Icahn Suggested Nominee, or
by or on behalf of the Company or its Representatives or (iii) is received from
a source other than any Icahn Suggested Nominee, the Company or any of its
Representatives; provided, that in the case of each of (ii) and (iii) above, the
source of such information was not known to you to be bound by a confidentiality
agreement with or other contractual, legal or fiduciary obligation of
confidentiality to the Company or any of its subsidiaries with respect to such
information at the time the same was disclosed.
2. You hereby agree that you and your Representatives will (a) keep the
Confidential Information strictly confidential and (b) not disclose any of the
Confidential Information in any manner whatsoever without the prior written
consent of the Company; provided, however, that you may disclose any of such
information to your Representatives (i) who need to know such information for
the sole purpose of advising you on your investment in the Company and (ii) who
are informed by you in advance of the confidential nature of such information
and who agree to comply with the use and confidentiality obligations contained
in this letter agreement as if they are a party hereto; provided, further, that
you will be responsible for any violation of this letter agreement by your
Representatives as if they were parties hereto. It is understood and agreed that
the Icahn Suggested Nominees shall not take any action or fail to take any
action with the purpose or effect of waiving attorney client privilege, disclose
to you any Legal Advice (as defined below) that may be included in the
Confidential Information with respect to which such disclosure would constitute
waiver of the Company's attorney client privilege or attorney work-product;
provided, however, that the Icahn Suggested Nominees may provide such disclosure
if any such Icahn Suggested Nominee has not taken any action or failed to take
any action that has the purpose or effect of waiving attorney client privilege
with respect to any portion of such Legal Advice and if reputable outside legal
counsel experienced in the area and reasonably acceptable to the Company
provides the Company with a written opinion that such disclosure will not waive
the Company's attorney client privilege with respect to such Legal Advice.
"Legal Advice" as used herein shall refer solely and exclusively to direct
communications with internal or outside legal counsel which are subject to
confidentiality pursuant to a claim of attorney-client privilege which, if
disclosed, would cause such confidentiality to be lost.
3. In the event that you or any of your Representatives are required by
applicable subpoena, legal process or other legal requirement to disclose any of
the Confidential Information, you will promptly notify (except where such notice
would be legally prohibited) the Company in writing and provide reasonable
cooperation, at the Company's expense, so that the Company may seek a protective
order or other appropriate remedy and/or waive compliance with the provisions of
this Confidentiality Agreement. If, in the absence of a protective order or
other remedy or the receipt of a waiver from the Company, you or any of your
Representatives are nonetheless, in the opinion of your counsel, legally
compelled to disclose Confidential Information, you may, without liability
hereunder, disclose to such tribunal only that portion of the Confidential
Information which such counsel advises you is legally required to be disclosed,
provided that you notify the recipient of the existence of this Confidentiality
Agreement and your obligations hereunder to maintain the confidentiality of the
Confidential Information. In no event will you oppose any action by the Company
to obtain a protective order, motion to quash or other relief to prevent the
disclosure of the Confidential Information or to obtain reliable assurance that
confidential treatment will be afforded the Confidential Information. It is
understood that there shall be no "legal requirement" requiring you to disclose
any Confidential Information solely by virtue of the fact that, absent such
disclosure, you would be prohibited from purchasing, selling, or engaging in
derivative or other transactions with respect to, the Common Stock or other
securities of the Company (including, for the avoidance of doubt, any agreement
or understanding with respect to the voting or the granting or withholding of
consent with respect to the Common Stock or other securities of the Company or
otherwise proposing or making an offer to do any of the foregoing).
4. You acknowledge that (a) none of the Company or any of its
Representatives makes any representation or warranty, express or implied, as to
the accuracy or completeness of any Confidential Information, and (b) none of
the Company or any of its Representatives shall have any liability to you or to
any of your Representatives relating to or resulting from the use of the
Confidential Information or any errors therein or omissions therefrom. You and
your Representatives shall not directly or indirectly initiate contact or
communication with any executive or employee of the Company other than the
Executive Chairman, Chief Executive Officer or General Counsel of the Company
concerning Confidential Information, or to seek any information in connection
therewith from any such person other than the Executive Chairman, Chief
Executive Officer or General Counsel of the Company without the prior written
consent of the Company.
5. All Confidential Information shall remain the property of the Company.
Neither you nor any of your Representatives shall by virtue of any disclosure of
and/or your use of any Confidential Information acquire any rights with respect
thereto, all of which rights (including all intellectual property rights) shall
remain exclusively with the Company. At any time upon the request of the Company
for any reason, you will promptly return to the Company, or destroy, all hard
copies of the Confidential Information and permanently erase or delete all
electronic copies of the Confidential Information in your or any of your
Representative's possession or control (and, upon the request of the Company,
shall certify to the Company that such Confidential Information has been erased
or deleted, as the case may be; provided that nothing herein shall require you
to return or destroy automatically created electronic copies stored on system
back-up tapes or disks. Notwithstanding the return, destruction or erasure or
deletion of Confidential Information, you will continue to be bound by the
obligations contained herein.
6. You acknowledge, and will advise your Representatives, that the
Confidential Information may constitute material non-public information under
applicable federal and state securities laws.
7. You hereby represent and warrant to the Company that this letter
agreement has been duly authorized, executed and delivered by you, and is a
valid and binding obligation, enforceable against you in accordance with its
terms.
8. It is understood and agreed that no failure or delay by the Company in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
future exercise thereof or the exercise of any other right, power or privilege
hereunder.
9. You acknowledge that the value of the Confidential Information to the
Company is unique and substantial, but may be impractical or difficult to assess
in monetary terms. In the event of an actual or threatened violation of this
letter agreement, in addition to any and all other remedies which may be
available to the Company, you expressly consent to the Company's obtaining the
enforcement of this letter agreement by injunctive relief or specific
performance, without proof of actual damages or posting of a bond.
10. You hereby agree to indemnify and hold harmless the Company and its
Affiliates and their respective officers, directors, employees, Affiliates,
advisors, agents and controlling persons, from and against any and all
out-of-pocket reasonable losses, damages, liabilities and expenses (excluding
any special, consequential or punitive damages, and any claim for loss of
profits), joint and several, incurred by the Company in defending any inquiry or
investigation, whether made, instituted or conducted by any Governmental or
Regulatory Authority (as defined below), related to or based upon any
acquisitions or dispositions of any Common Stock or other securities of the
Company by you or any of your Affiliates, or representatives, or any alleged
"tippee" thereof, which inquiry or investigation has resulted in a final
non-appealable determination that you or your Affiliates have violated any
applicable law related to trading on the Confidential Information covered by
this Agreement. "Governmental or Regulatory Authority" means any court,
tribunal, arbitrator, authority, agency, bureau, board, commission, department,
official or other instrumentality of the United States, any foreign country or
any domestic or foreign state, county, city or other political subdivision, and
shall include any stock exchange and quotation service.
11. Each of the parties hereto (a) consents to submit itself to the
personal jurisdiction of the Court of Chancery or other federal or state courts
of the State of Delaware in the event any dispute arises out of this Agreement
or the transactions contemplated by this Agreement, (b) agrees that it shall not
attempt to deny or defeat such personal jurisdiction by motion or other request
for leave from any such court, (c) agrees that it shall not bring any action
relating to this Agreement or the transactions contemplated by this Agreement in
any court other than the Court of Chancery or other federal or state courts of
the State of Delaware, and each of the parties irrevocably waives the right to
trial by jury and (d) each of the parties irrevocably consents to service of
process by a reputable overnight mail delivery service, signature requested, to
the address of such parties' principal place of business or as otherwise
provided by applicable law. THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS,
INCLUDING WITHOUT LIMITATION VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF
THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES OF
SUCH STATE THAT WOULD COMPEL THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION.
12. This letter agreement contains the entire understanding of the parties
with respect to the subject matter hereof and thereof and may be amended only by
an agreement in writing executed by the parties hereto.
13. All notices, consents, requests, instructions, approvals and other
communications provided for herein and all legal process in regard hereto shall
be in writing and shall be deemed validly given, made or served, if (a) given by
telecopy, when such telecopy is transmitted to the telecopy number set forth
below and the appropriate confirmation is received or (b) if given by any other
means, when actually received during normal business hours at the address
specified in this subsection:
if to the Company: The Hain Celestial Group, Inc.
58 South Service Road
Melville, New York 11747
Attention: General Counsel
Facsimile: (631) 730-2259
with a copy to: DLA Piper LLP (US)
1251 Avenue of the Americas
New York, New York, 10020
Attention: Roger Meltzer, Esq.
Facsimile: (212) 335-4501
if to the Icahn Group: Icahn Capital LP
767 Fifth Avenue, 47th Floor
New York, New York 10153
Attention: Marc Weitzen
Facsimile: (212) 688-1158
14. If at any time subsequent to the date hereof, any provision of this
letter agreement shall be held by any court of competent jurisdiction to be
illegal, void or unenforceable, such provision shall be of no force and effect,
but the illegality or unenforceability of such provision shall have no effect
upon the legality or enforceability of any other provision of this letter
agreement.
15. This letter agreement may be executed (including by facsimile or PDF)
in two or more counterparts which together shall constitute a single agreement.
16. This letter agreement and the rights and obligations herein may not be
assigned or otherwise transferred, in whole or in part, by you without the
express written consent of the Company.
17. This Confidentiality Agreement shall expire one year from the date on
which each Icahn Suggested Nominee ceases to be a director of the Company.
18. No licenses or rights under any patent, copyright, trademark, or trade
secret are granted or are to be implied by this letter agreements.
19. Each of the parties hereto acknowledges that it has been represented by
counsel of its choice throughout all negotiations that have preceded the
execution of this agreement, and that it has executed the same with the advice
of said counsel. Each party and its counsel cooperated and participated in the
drafting and preparation of this agreement and the documents referred to herein,
and any and all drafts relating thereto exchanged among the parties shall be
deemed the work product of all of the parties and may not be construed against
any party by reason of its drafting or preparation. Accordingly, any rule of law
or any legal decision that would require interpretation of any ambiguities in
this agreement against any party that drafted or prepared it is of no
application and is hereby expressly waived by each of the parties hereto, and
any controversy over interpretations of this agreement shall be decided without
regards to events of drafting or preparation. The section headings contained in
this agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this agreement.
[Signature Page Follows]
Please confirm your agreement with the foregoing by signing and returning one
copy of this letter to the undersigned, whereupon this letter agreement shall
become a binding agreement between you and the Company.
Very truly yours,
THE HAIN CELESTIAL GROUP, INC.
By: _________________________
Name:
Title:
Accepted and agreed as of the date first written above:
By: _________________________________
Name:
Title:
EXHIBIT B
---------
[FORM OF PRESS RELEASE]
Contacts:
Ira Lamel/Mary Anthes
The Hain Celestial Group, Inc.
631-730-2200
HAIN CELESTIAL REACHES AN AGREEMENT WITH ICAHN GROUP
MELVILLE, NY, JULY 7, 2010-The Hain Celestial Group, Inc. (NASDAQ: HAIN) ("Hain
Celestial" or the "Company"), a leading natural and organic products company
providing consumers with A Healthy Way of Life , today announced that Brett
Icahn and David Schechter have been appointed to its Board of Directors pursuant
to an agreement with investment funds managed by Carl Icahn (the "Icahn Group").
Under the terms of the agreement, the Icahn Group have agreed to support the
Company's Board of Directors' slate of director nominees, which will include
Messrs. Icahn and Schechter, at Hain Celestial's 2010 Annual Meeting of
Stockholders. The Company has temporarily increased the number of seats on the
Board from ten to twelve. Following the 2010 Annual Meeting, the number of seats
on the Board will return to ten.
"We are pleased to welcome Brett and David to our Board of Directors," said
Irwin D. Simon, Chairman, Chief Executive Officer and President of Hain
Celestial. "We look forward to their contributions and working with them to
achieve our objectives."
"Hain has a strong portfolio of brands that position it well for a continuing
secular shift towards organic and all natural foods and consumer packaged
goods," said Carl Icahn. "We look forward to working with the current board and
management toward enhancing stockholder value."
The new directors are:
Brett Icahn. Mr. Icahn has been employed by Carl Icahn and his affiliated
investment funds since 2002. Mr. Icahn has served as director of Cadus
Corporation since July 2010, as a director of Take-two Interactive Software
since April 2010, as a director of Motricity, Inc. since January 2010, and as a
director of American Railcar Industries Inc. since January 2007. Mr. Icahn also
had served on the board of HowStuffWorks.com, an internet website acquired by
Discovery Communications, Inc. in 2007. Mr. Icahn received a B.A. from Princeton
University.
David Schechter. Mr. Schechter has, since July 2008, served as Managing Director
for Icahn Capital LP, the entity that manages the private investment funds in
the Icahn Group and in various roles of increasing responsibility since November
2004. From January 2004 to October 2004, Mr. Schechter served as an investment
analyst with Icahn Associates Corp. and High River Limited Partnership, entities
that are primarily engaged in the business of holding and investing in
securities. Mr. Schechter also serves on the boards of directors of the
following companies: WestPoint International, Inc., a manufacturer of bed and
bath home fashion products; and Federal-Mogul Corporation, a supplier of
automotive products and XO Holdings, Inc., a telecommunications company. From
August 2007 to August 2008, Mr. Schechter served as a director of WCI
Communities, Inc., a homebuilding company. Prior to January 2004, Mr. Schechter
served as vice president of global special situations at Citigroup, a unit
responsible for making proprietary investments in distressed situations. Mr.
Schechter received a B.S. in Economics, cum laude, from the Wharton School at
the University of Pennsylvania.
The agreement between the Company and the Icahn Group will be filed in a
Form 8-K with the Securities and Exchange Commission.
THE HAIN CELESTIAL GROUP
The Hain Celestial Group (NASDAQ: HAIN), headquartered in Melville, NY, is a
leading natural and organic products company in North America and Europe. Hain
Celestial participates in many natural categories with well-known brands that
include Celestial Seasonings(R), Earth's Best(R), Terra(R), Garden of Eatin'(R),
Sensible Portions(R), Health Valley(R), Arrowhead Mills(R), MaraNatha(R),
SunSpire(R), DeBoles(R), Gluten Free Caf (TM), Hain Pure Foods(R), Hollywood(R),
Spectrum Naturals(R), Spectrum Essentials(R), Walnut Acres Organic(R),
Imagine(R), Almond Dream(R), Rice Dream(R), Soy Dream(R), WestSoy(R), Greek
Gods(R), Ethnic Gourmet(R), Yves Veggie Cuisine(R), Granose(R), Realeat(R),
Linda McCartney(R), Daily Bread(TM), Lima(R), Grains Noirs(R), Natumi(R),
JASON(R), Zia(R) Natural Skincare, Avalon Organics(R), Alba Botanica(R), Queen
Helene(R), Tushies(R), TenderCare(R) and Martha Stewart Clean(TM). Hain
Celestial has been providing "A Healthy Way of Life(TM)" since 1993. For more
information, visit www.hain-celestial.com.