As filed with the Securities and Exchange Commission on October 28, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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THE HAIN FOOD GROUP, INC.
(Exact name of registrant as specified in its charter)
Delaware 22-3240619
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
50 Charles Lindbergh Boulevard 11553
Uniondale, New York (Zip Code)
(Address of principal executive offices)
Registrant's telephone number, including area code: (516) 237-6200
THE HAIN FOOD GROUP, INC.
1993 Executive Stock Option Plan
1994 Long Term Incentive and Stock Award Plan
1996 Directors Stock Option Plan
(Full titles of the plans)
Irwin D. Simon
President and Chief Executive Officer
The Hain Food Group, Inc.
50 Charles Lindbergh Boulevard
Uniondale, New York 11553
(Name and address of agent for service)
(516) 237-6200
(Telephone number, including area code, of agent for service)
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copy to:
Roger Meltzer, Esq.
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
(212) 701-3000
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CALCULATION OF REGISTRATION FEE
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Title of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered Offering Price Per Share Aggregate Offering (1) Registration Fee(1)
(1) Price
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Common Stock, par value 1,755,000 shares $10.25 $17,988,750.00 $5,451.14
$.01 per share
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(1) Estimated pursuant to Rule 457 solely for the purpose of calculating the
registration fee. Estimate based on the average of the high and low sales
price reported on the Nasdaq National Market for October 27, 1997.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. DOCUMENTS INCORPORATED BY REFERENCE.
The following documents have been filed by The Hain Food
Group, Inc. (the "Registrant") with the Securities and Exchange Commission (the
"Commission") and are hereby incorporated by reference in this Registration
Statement:
(1) The description of the Registrant's Common Stock, par value $.01
per share (the "Common Stock"), contained in the Registrant's
Registration Statement on Form 8-A/A dated November 12, 1993 and
any amendment or report filed for the purpose of updating such
description;
(2) The Registrant's annual report on Form 10-K filed with Commission
for the fiscal year ended June 30, 1997; and
(3) The Registrant's current reports on Form 8-K dated September 8,
1997, September 12, 1997 and October 28, 1997.
All documents subsequently filed by the Registrant with the
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain legal matters with respect to the issuance of the
securities offered hereby will be passed upon for the Registrant by Cahill
Gordon & Reindel (a partnership including a professional corporation), 80 Pine
Street, New York, New York 10005.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article Tenth of the certificate of incorporation of the
Registrant eliminates the personal liability of directors or its stockholders
for monetary damages for breach of fiduciary duty as a director, provided that
such elimination of the personal liability of a director of the Registrant does
not apply to (a) any breach of the director's duty of loyalty to the Registrant
or its stockholders, (b) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (c) actions prohibited
under Section 174 of the Delaware General Corporation Law (the "DGCL") (i.e.,
liabilities imposed upon directors who vote for or assent to the unlawful
payment of dividends, unlawful repurchase or redemption of stock, unlawful
distribution of assets of the Issuer to the stockholders without the prior
payment or discharge of the Registrant's debts or obligations, or unlawful
making or guaranteeing of loans to directors), or (d) any transaction from which
the director derived an improper personal benefit.
Section 145 of the DGCL provides, in summary, that directors
and officers of Delaware corporations such as the Registrant are entitled, under
certain circumstances, to be indemnified against all expenses and liabilities
(including attorneys' fees) incurred by them as a result of suits brought
against them in their capacity as a director or officer, if they acted in good
faith and in a manner they reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action or
proceeding, if they had no reasonable cause to believe their conduct was
unlawful; provided, that no indemnification may be made against expenses in
respect of any claim, issue or matter as to which they shall have been adjudged
to be liable to the corporation, unless and only to the extent that the court in
which such action or suit was brought shall determine upon application that
despite the adjudication of liability but in view of all the circumstances of
the case, they are fairly and reasonably entitled to indemnify for such expenses
which such court shall deem proper. Any such indemnification may be made by the
corporation only as authorized in each specific case upon a determination by
stockholders or disinterested directors that indemnification is proper because
the indemnitee has met the applicable standard of conduct. In addition, Article
Eleventh of the Registrant's certificate of incorporation and Article VI of the
Registrant's by-laws provide for the Registrant to indemnify its corporate
personnel, directors and officers to the full extent permitted by Section 145 of
the DGCL, as the same may be supplemented or amended from time to time.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
During the Registrant's fiscal 1997, John Gildea, a former
director of the Registrant, exercised an option under the Directors Plan for
15,000 shares of Common Stock, which were issued to Mr. Gildea in reliance of
Section 4(2) under the Securities Act of 1933, as amended (the "Securities
Act").
ITEM 8. EXHIBITS.
The following exhibits are filed as part of this Registration Statement:
Exhibit No. Description
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4.1 The Hain Food Group, Inc. 1993 Executive Stock Option Plan
(incorporated by reference to Exhibit 4.2 to the Registrant's
Registration Statement on Form SB-2, File No. 33-68026 (the
"IPO Registration Statement")).
4.2 The Hain Food Group, Inc. 1994 Long Term Incentive and Stock
Award Plan (incorporated by reference to Exhibit 4.3 to the
IPO Registration Statement).
4.3 The Hain Food Group, Inc. 1996 Directors Stock Option Plan
(incorporated by reference to Appendix A to the Company's
Notice of Annual Meeting of Stockholders and Proxy Statement
dated November 4, 1996 (the "1996 Proxy")).
5 Opinion of Cahill Gordon & Reindel regarding the legality of
the securities being registered.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Cahill Gordon & Reindel (included in Exhibit 5).
24 Powers of Attorney authorizing execution of Registration
Statement of Form S-8 on behalf of certain directors of
Registrant (included on signature pages to this Registration
Statement).
ITEM 9. UNDERTAKINGS.
The undersigned hereby undertakes:
(a) (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;
(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;
(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 paragraphs (a) (1) (i) and (a) (1) (ii) do not apply if
the Registration Statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, 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;
(b) For purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report pursuant to
Section 13 (a) or Section 15(d) of the Exchange Act that is incorporated by
reference in the Registration Statement shall be deemed to be a new Registration
Statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof; and
(c) Insofar as indemnification for liabilities arising under
the Securities Act 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 Commission, such
indemnification is against public policy as expressed in the Securities 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.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities
Act of 1933, as amended, the Registrant certifies that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Uniondale, State of New York, on this 28th day of
October, 1997.
THE HAIN FOOD GROUP, INC.
By: /s/ Irwin D. Simon
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Name: Irwin D. Simon
Title: President and Chief Executive Officer
Each person whose signature appears below hereby constitutes
and appoints Irwin D. Simon, the President and Chief Executive Officer of the
Registrant, and Jack Kaufman, the Chief Financial Officer, Treasurer and
Assistant Secretary of the Registrant, or either of them, acting alone, as his
true and lawful attorney-in-fact, with full power and authority to execute in
the name, place and stead of each such person in any and all capacities and to
file, an amendment or amendments to the Registration Statement (and all exhibits
thereto) and any documents relating thereto, which amendments may make such
changes in the Registration Statement as said officer or officers so acting
deem(s) advisable. Pursuant to the requirements of the Securities Act of 1933,
as amended, this Registration Statement has been signed by the following persons
in the capacities and on the date indicated.
/s/ Andrew R. Heyer Chairman of the Board of Directors October 28, 1997
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Andrew R. Heyer
/s/ Irwin D. Simon President, Chief Executive October 28, 1997
- -------------------------------- Officer and Director
Irwin D. Simon
/s/ Jack Kaufman Vice President-Chief Financial Officer October 28, 1997
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Jack Kaufman
/s/ Beth L. Bronner Director October 28, 1997
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Beth L. Bronner
Director October 28, 1997
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William P. Carmichael
/s/ William J. Fox Director October 28, 1997
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William J. Fox
/s/ Jack Futterman Director October 28, 1997
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Jack Futterman
/s/ Barry Gordon Director October 28, 1997
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Barry Gordon
/s/ Steven S. Schwartzreich Director October 28, 1997
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Steven S. Schwartzreich
INDEX TO EXHIBITS
Exhibit Description
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4.1 The Hain Food Group, Inc. 1993 Executive Stock Option Plan
(incorporated by reference to Exhibit 4.2 to the IPO
Registration Statement)
4.2 The Hain Food Group, Inc. 1994 Long Term Incentive and Stock
Award Plan (incorporated by reference to Exhibit 4.3 to the
IPO Registration Statement)
4.3 The Hain Food Group, Inc. 1996 Directors Stock Option Plan
(incorporated by reference to Appendix A to the 1996 Proxy)
5 Opinion of Cahill Gordon & Reindel regarding the legality of
the securities being registered
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Cahill Gordon & Reindel (included in Exhibit 5)
24 Powers of Attorney (included on signature pages to this
Registration Statement)
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
EXHIBIT 5
October 28, 1997
Securities and Exchange Commission
450 5th Street, N.W.
Washington, D.C. 20549
Re: The Hain Food Group, Inc.
Registration Statement on Form S-8
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Ladies and Gentlemen:
We have acted as special counsel to The Hain Food Group, Inc.
(the "Company") in connection with the preparation of the Company's registration
statement on Form S-8 (the "Registration Statement") filed with the Securities
and Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended. The Registration Statement covers shares of the common stock of the
Company, $.01 par value (the "Common Stock"), offered under (i) The Hain Food
Group, Inc. 1993 Executive Stock Option Plan, (ii) The Hain Food Group, Inc.
1994 Long Term Incentive and Stock Award Plan and (iii) The Hain Food Group,
Inc. 1996 Directors Stock Option Plan (the "Plans").
In rendering the opinions set forth herein, we have examined
originals, photocopies or conformed copies certified to our satisfaction of all
such corporate records, agreements, instruments and documents of the Company,
certificates of public officials and other certificates and opinions, and we
have made such other investigations, as we have deemed necessary in connection
with the opinions set forth herein. In our examination, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals and the conformity to originals of all documents submitted to us as
photocopies or conformed copies.
Based on the foregoing, we advise you that in our opinion, the
shares of Common Stock of the Company offered upon the exercise of options under
the Plans will be legally issued, fully paid and nonassessable.
We are members of the bar of the State of New York, and in
rendering this opinion we express no opinion as to the laws of any jurisdiction
other than the laws of the State of New York, the General Corporation Law of the
State of Delaware and the Federal laws of the United States of America.
We hereby consent to the filing of a copy of this opinion with
the Commission as an exhibit to the Registration Statement referred to above.
Very truly yours,
/s/ Cahill Gordon & Reindel
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this
Registration Statement (Form S-8 No. 333-00000) pertaining to The Hain Food
Group, Inc. 1993 Executive Stock Option Plan, 1994 Long Term Incentive and Stock
Award Plan and 1996 Directors Stock Option Plan of our report dated September 3,
1997, with respect to the consolidated financial statements of The Hain Food
Group, Inc. included in its Annual Report (Form 10-K) for the year ended June
30, 1997, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
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ERNST & YOUNG LLP
Melville, New York
October 28, 1997
