As filed with the Securities and Exchange Commission on February 1, 2001
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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THE HAIN CELESTIAL 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
Uniondale, New York 11553
(516) 237-6200
(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.
50 Charles Lindbergh Boulevard
Uniondale, New York 11553
(516) 237-6200
(Name, address, including zip code, and 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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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 to
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 delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
=================================================================================================================================
Amount to be Proposed Maximum Proposed Maximum Amount of
Title of Securities to be Registered Offering Price Per Share (1) Aggregate Offering Price (1) Registration Fee
Registered
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Common Stock, par value 123,830 shares $32.97 $4,082,675 $1,021
$.01 per share
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(1) Estimated pursuant to Rule 457(c) solely for the purpose of calculating the
amount of the registration fee based on the average of the high and low
prices of the Company's Common Stock as reported on the Nasdaq National
Market System on January 30, 2001.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until this Registration Statement
shall become effective on such date as the Commission, acting pursuant to
Section 8(a), may determine.
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The information in this prospectus is not complete and may be changed. The
selling stockholder may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is effective. This
prospectus is not an offer to sell these securities and it is not soliciting
offers to buy these securities in any state where the offer or sale is not
permitted.
SUBJECT TO COMPLETION, DATED FEBRUARY 1, 2001
PROSPECTUS
THE HAIN CELESTIAL GROUP, INC.
123,830 Shares of Common Stock
This prospectus relates to the offer and sale of an aggregate of 123,830
shares of the common stock of The Hain Celestial Group, Inc. by the selling
stockholder listed under the heading "Selling Stockholder." We issued these
shares to the selling stockholder in connection with our acquisition of Fruit
Chips B.V. on January 18, 2001.
Our common stock is traded on the Nasdaq National Market under the symbol
HAIN. The last reported sales price of our common stock as reported by the
Nasdaq National Market System on January 30, 2001 was $33.00 per share.
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See "Risk Factors" for a discussion of certain factors which should be
considered in an investment of securities offered hereby.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
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The date of this prospectus is ________, 2001.
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TABLE OF CONTENTS
Page
RISK FACTORS................................................................1
USE OF PROCEEDS.............................................................8
SELLING STOCKHOLDER.........................................................9
PLAN OF DISTRIBUTION.......................................................10
DESCRIPTION OF CAPITAL STOCK...............................................11
LEGAL MATTERS..............................................................14
EXPERTS....................................................................14
WHERE YOU CAN FIND MORE INFORMATION........................................15
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You should rely only on the information contained or incorporated by
reference in this prospectus or to which we have referred you. We have not
authorized anyone to provide you with information that is different. This
prospectus may be used only where it is legal to sell these securities. The
information contained or incorporated by reference in this prospectus may be
accurate only on the date of this prospectus.
This prospectus contains certain forward-looking statements regarding our
future financial condition and results of operations and our business
operations. These statements involve risks, uncertainties and assumptions,
including industry and economic conditions and customer actions and the other
factors discussed in this prospectus (including under the caption "Risk
Factors") and in our filings with the Securities and Exchange Commission. 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.
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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.
Our Acquisition Strategy Exposes The Company To Risk
We intend to continue to grow our business in part through the acquisition
of new brands and businesses. Our acquisition strategy is based on identifying
and acquiring businesses with products and/or brands that complement our
existing product mix. We cannot be certain that we will be able to:
o successfully identify suitable acquisition candidates;
o negotiate identified acquisitions on terms acceptable to us; or
o obtain the necessary financing to complete such acquisition.
We may encounter increased competition for acquisitions in the future,
which could result in acquisition prices we do not consider acceptable. We are
unable to predict whether or when any prospective acquisition candidate will
become available or the likelihood that any acquisition will be completed.
Our Future Success May Be Dependent On Our Ability To Integrate Companies That
We Acquire
Our future success may be dependent upon our ability to effectively
integrate businesses that we acquire and their brands, including our ability to
realize potentially available marketing opportunities and cost savings, some of
which may involve operational changes. We cannot be certain:
o as to the timing or number of marketing opportunities or amount of
cost savings that may be realized as the result of our integration of
an acquired company and its brands;
o that a business combination will enhance our competitive position and
business prospects; or
o that we will not experience difficulties with customers, personnel or
other parties as a result of a business combination.
In addition, we cannot be certain that we will be successful in:
o integrating an acquired company's distribution channels with those of
Hain;
o coordinating sales force activities of an acquired company or in
selling the products of an acquired company to our customer base; or
o integrating an acquired company into our management information
systems or in integrating an acquired company's products into our
product mix.
Additionally, integrating an acquired company into Hain's existing
operations will require management resources and may divert our management from
our day-to-day operations. If we are not successful in integrating the
operations of acquired companies, our business could be harmed.
Consumer Preferences For Specialty Food Products And Teas Are Difficult to
Predict And May Change
A significant shift in consumer demand away from our products or our
failure to maintain our current market position could reduce our sales or the
prestige of our brands in our markets, which could harm our business. While we
continue to diversify our product offerings, we cannot be certain that demand
for our products will continue at current levels or increase in the future.
Our business is limited to natural and specialty food 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 our
business. Consumer trends change based on a number of possible factors,
including:
o nutritional values, such as a change in preference from fat free to
reduced fat to no reduction in fat; and
o a shift in preference from organic to non-organic and from natural
products to non-natural products.
In addition, we have other product categories, such as medically-directed
and weight management food products, kosher foods and other specialty food
items. We are subject to evolving consumer preferences for these products.
Our tea business, which we operate through our wholly owned subsidiary,
Celestial Seasonings, Inc., is substantially dependent on the specialty teas
market, which consists of herb tea, green tea, wellness tea and specialty black
teas. If consumer demand for our specialty teas were to decrease, our business
could be harmed.
Our Markets Are Highly Competitive
We operate in highly competitive geographic and product markets, and some
of our markets are dominated by competitors with greater resources. We cannot be
certain that we 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, we compete
for limited retailer shelf space for our products. Larger competitors, such as
mainstream food companies including General Mills, Nestle S.A., Kraft Foods,
Groupe Danone and Kellogg Company also may be able to benefit from economies of
scale, pricing advantages or the introduction of new products that compete with
our products. Retailers also market competitive products under their own private
labels.
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The beverage market is large and highly competitive. The tea portion of the
beverage market is also highly competitive. Competitive factors in the tea
industry include product quality and taste, brand awareness among consumers,
variety of specialty tea flavors, interesting or unique product names, product
packaging and package design, supermarket and grocery store shelf space,
alternative distribution channels, reputation, price, advertising and promotion.
We currently compete in the specialty tea market segment which consists of herb
tea, green tea, wellness tea and specialty black tea. Our specialty herb tea
products, like other specialty tea products, are priced higher than most
commodity black tea products. Our principal competitors on a national basis in
the specialty teas market segment are Thomas J. Lipton Company, a division of
Unilever PLC and R.C. Bigelow, Inc. Unilever has substantially greater financial
resources than our tea business. Additional competitors include a number of
regional specialty tea companies. Private Label competition in the specialty tea
category is currently minimal.
In the future our competitors may introduce other products that compete
with our products and these competitive products may have an adverse effect on
our business.
We Are Dependent Upon The Services Of Our Chief Executive Officer
We are highly dependent upon the services of Irwin D. Simon, our chairman
of the board, president and chief executive officer. We believe Mr. Simon's
reputation as our founder and his expertise and knowledge in the natural and
specialty foods market are critical factors in our continuing growth. The loss
of the services of Mr. Simon would harm our business.
We Rely On Independent Brokers And Distributors For A Substantial Portion Of Our
Sales
We rely upon sales efforts made by or through non-affiliated food brokers
to distributors and other customers. The loss of, or business disruption at, one
or more of these distributors or brokers may harm our business. If we were
required to obtain additional or alternative distribution and food brokerage
agreements or arrangements in the future, we cannot be certain that we will be
able to do so on satisfactory terms or in a timely manner. Two of our
distributors, Tree of Life and United Natural Foods, accounted for approximately
18% and 17%, respectively, of our net sales for the fiscal year ended June 30,
2000. Our inability to enter into satisfactory brokerage agreements may inhibit
our ability to implement our business plan or to establish markets necessary to
develop our 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 our business depends,
in large part, upon the establishment and maintenance of a strong distribution
network.
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Manufacturing Facilities
We manage and operate five manufacturing facilities located throughout the
United States. These facilities are located and produce the following product
lines: Celestial Seasonings(R), in Boulder, Colorado, produces specialty teas,
Terra Chips(R), in Brooklyn, New York, produces vegetable chips; Arrowhead
Mills(R), in Hereford, Texas, produces hot and cold cereals, baked goods and
meal cups; Deboles(R) pasta, in Shreveport, Louisiana, produces organic pasta;
and Health Valley(R) in Irwindale, California, produces hot and cold cereals,
baked goods, granola, granola bars, dry soups and other products under the
Health Valley(R), Breadshop(R) and Casbah(R) labels. In addition, we have one
manufacturing facility in The Netherlands that produces snack foods.
The facilities in Brooklyn, New York and Irwindale, California are under
operating leases through 2004. We own the manufacturing facilities in Boulder,
Colorado, Hereford, Texas, Shreveport, Louisiana and The Netherlands. As of June
30, 2000, approximately 55% of our revenue was derived from products
manufactured at these locations.
An interruption in or the loss of operations at one or more of these
facilities or failure to maintain our labor force at one or more of these
facilities could delay or postpone production of our products, which could have
a material adverse effect on our business, results of operations and financial
condition until we could secure an alternate source of supply.
We believe we have sufficient capacity in all of our facilities except for
the Brooklyn, New York facility, which is currently at capacity. In the fourth
quarter of fiscal 2000, the demand for Terra Chips products exceeded the
production capacity of our Brooklyn, New York facility. We are pursuing
additional sources of supply to alleviate these ongoing capacity restraints,
including the addition of a new co-packer that began producing our products in
October 2000, and the expected opening of a new production facility in the fall
of 2001. We cannot assure you that any such alternate source of supply could be
obtained on reasonable terms, or at all.
Furthermore, there can be no assurance that the current power situation in
California, or similar situations which may arise in other states, would not
adversely affect our business. Also, we are in ongoing labor negotiations with
our employees at our Irwindale facility, and any work stoppage or disruption at
that facility or any of our other facilities could materially harm our business.
We Rely On Independent Co-Packers To Produce Some Or Most Of Our Products
Currently, independent food manufacturers, who are referred to in our
industry as co-packers, manufacture many of our product lines. These product
lines include our Alba(R), Estee(R), Garden of Eatin'(R), Hain Pure Foods(R),
Kineret(R), Little Bear Organic Foods(R), Terra Chips(R), Westbrae(R), and
Westsoy(R) product lines. During the fiscal year ended June 30, 2000, products
manufactured for us by co-packers represented approximately 45% of our sales.
We presently obtain:
o all of our requirements for non-dairy beverages from five co-packers,
four of which are under contract;
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o all of our requirements for rice cakes from two co-packers;
o all of our cooking oils from one co-packer, which is under contract;
o principally all of our tortilla chips from two suppliers, one of which
is under contract;
o all of our requirements for Terra's Yukon Gold line from one supplier,
which is under contract; and
o the requirements for our canned soups from three suppliers.
In addition, H.J. Heinz manufactures the Earth's Best baby food products
for Hain under contract. The loss of one or more co-packers, or our failure to
retain co-packers for newly acquired products or brands, could delay or postpone
production of our products, which could harm our business until such time as an
alternate source could be secured, which may be on less favorable terms.
Our Tea Ingredients Are Subject To Import Risk
Our tea business purchases its ingredients from numerous foreign and
domestic manufacturers, importers and growers, with the majority of those
purchases occurring outside of the United States. We maintain long-term
relationships with most of our 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.
Our 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 we often must
educate the growers about product standards. We perform laboratory analysis on
incoming ingredient shipments for the purpose of assuring that they meet our
quality standards and those of the U.S. Food and Drug Administration.
Our ability to ensure a continuing supply of ingredients at competitive
prices depends on many factors beyond our control, such as foreign political
situations, embargoes, changes in international and world economic conditions,
currency fluctuations and unfavorable climatic conditions. We take 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. We have, in the past, maintained
sufficient supplies for its ongoing operations.
Our failure to maintain its 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
our business.
Our Inability To Use Our Trademarks Could Have A Material Adverse Effect On Our
Business
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Our inability to use our trademarks could have a material adverse effect on
our business, results of operations and financial condition.
We own the trademarks for our principal products, including the Arrowhead
Mills(R), Bearitos(R), Breadshop's(R), Casbah(R), DeBoles(R), Earth's Best(R),
Estee(R), Garden of Eatin'(R), Hain Pure Foods(R), Health Valley(R), Kineret(R),
Little Bear Organic Foods(R), Nile Spice(R), Terra(R), Westbrae(R), and
Westsoy(R) brands.
Our tea business has trademarks for most of its best-selling brands,
including Sleepytime(R), Lemon Zinger(R), Mandarin Orange Spice(R), Red
Zinger(R), Wild Berry Zinger(R), Tension Tamer(R), Country Peach Passion(R), and
Raspberry Zinger(R). Our tea business has made various federal and international
filings with respect to its material trademarks, and intends to keep these
filings current and seek protection for new trademarks to the extent consistent
with business needs. Our tea business also copyrights certain of its artwork and
package designs.
We believe that brand awareness is a significant component in a consumer's
decision to purchase one product over another in the highly competitive food and
beverage industry. Our failure to continue to sell our products under our
established brand names could harm our business.
Our Products Must Comply With Government Regulation
We and our manufacturers, brokers, distributors and co-packers are subject
to extensive regulation by federal, state and local authorities that affect our
business. The federal agencies governing our business include the Federal Trade
Commission ("FTC"), The Food and Drug Administration ("FDA"), the United States
Department of Agriculture ("USDA") and the Occupational Safety and Health
Administration. These agencies regulate, among other things, the production,
sale, safety, advertising, labeling of and ingredients used in our products.
Under various statutes these agencies prescribe the requirements and establish
the standards for quality, purity and labeling. Among other requirements, the
FDA must approve our products, including a review of the manufacturing processes
and facilities used to produce these products before these products can be
marketed in the United States. In addition advertising of our business is
subject to regulation by the FTC. Our activities are also regulated by state
agencies as well as county and municipal authorities. We are also subject to the
laws of the foreign jurisdictions in which we sell our products.
The USDA has adopted regulations with respect to organic labeling and
certification which go into effect on February 28, 2001 (with an 18-month
compliance period for existing products). We are in the process of evaluating
our level of compliance with these regulations. In addition, on January 19,
2001, the FDA proposed new rules regarding genetically modified foods. The FDA's
proposal is in a comment period through the end of March 2001. These rules, if
adopted, could require us to modify the labeling of our products, which could
effect the sales of our products and thus harm our business.
Furthermore, new government laws and regulations may be introduced in the
future that could result in additional compliance costs, seizures, confiscation,
recall or monetary fines, any of which could prevent or inhibit the development,
distribution and sale of our products. If we fail to comply with applicable laws
and regulations, we may be subject to civil remedies, including fines,
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injunctions, recalls or seizures, as well as potential criminal sanctions, which
could have a material adverse effect on our business, results of operations and
financial condition.
In addition, we manufacture and sell dietary supplements through our
Celestial subsidiary which are subject to the Dietary Supplement Health and
Education Act of 1994 or DSHEA, which went into effect in March 1999. DSHEA
defines dietary supplements as a new category of food, separate from
conventional food. DSHEA requires specific nutritional labeling requirements for
dietary supplements and permits substantiated, truthful and non-misleading
statements of nutritional support to be made in labeling, such as statements
describing general well-being resulting from consumption of a dietary
ingredient, or the role of a nutrient or dietary ingredient in affecting or
maintaining a structure or function of the body.
Product Recalls Could Have A Material Adverse Effect On Our Business
Manufacturers and distributors of products in the food 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 our products are recalled due to a
product defect or for any other reason, we could be required to incur the
expense of the recall or the expense of any resulting legal proceeding.
Additionally, if one of our significant brands were subject to recall, the image
of that brand could be harmed, which could have a material adverse effect on our
business.
Product Liability Suits, If Brought, Could Have A Material Adverse Effect On Our
Business
If a product liability claim exceeding our insurance coverage were to be
successfully asserted against us, it could harm our business. We cannot assure
you that such coverage will be sufficient to insure against claims which may be
brought against us, or that we will be able to maintain such insurance or obtain
additional insurance covering existing or new products. As a marketer of food
products, we are subject to the risk of claims for product liability. We
maintain product liability insurance and generally require that our co-packers
maintain product liability insurance with us as a co-insured.
We Rely On Independent Certification For A Number Of Our Natural And Specialty
Food Products
We rely on independent certificates, such as certifications of our products
as "organic" or "kosher," to differentiate our products in natural and specialty
food categories. The loss of any independent certifications could adversely
affect our market position as a natural and specialty food company, which could
harm our business.
We must comply with the requirements of independent organizations or
certification authorities in order to label our product as certified. For
example, we can lose our "organic" certification if a 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, we can lose
our "kosher" certification if a plant and raw materials do not meet the
requirements of the appropriate kosher supervision organization, such as The
Union of Orthodox Jewish Congregations, The
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Organized Kashruth Laboratories, "KOF-K" Kosher Supervision, Kosher Overseers
Associated of America and Upper Midwest Kashruth.
Our Tea Business Is Seasonal And Subject To Quarterly Fluctuations
Our tea business consists primarily of manufacturing and marketing 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. Quarterly fluctuations in our sales volume and operating
results are due to a number of factors relating to our 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 our business. For these reasons, you should
not rely on our quarterly operating results as indications of future
performance. In some future periods, our operating results may fall below the
expectations of securities analysts and investors. This could cause the trading
price of our common stock to fall.
Our Officers And Directors And An Unaffiliated Stockholder May Be Able To
Control Our Actions
Our officers and directors beneficially own 12.0% of our common stock. Of
these officers and directors, two of our directors currently serve as a designee
and jointly appointed designee of an affiliate of H.J. Heinz Company, which owns
approximately 18.4% of our common stock. Accordingly, our officers and directors
may be in a position to influence the election of our directors and otherwise
influence stockholder action.
Our Ability To Issue Preferred Stock May Deter Takeover Attempts
Our 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 our common stock and adversely affect the relative
voting power or other rights of the holders of our 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. Our 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 our board of directors. Although we have no present intention to
issue any shares of our preferred stock, we may do so in the future under
appropriate circumstances.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of shares by the
selling stockholder. All of the proceeds from the sale of shares of common stock
by the selling stockholder will be received by the selling stockholder.
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SELLING STOCKHOLDER
The following table shows information regarding ownership of the shares of
common stock held by the selling stockholder. The selling stockholder received
the shares of our common stock being registered in connection with our
acquisition of Fruit Chips B.V. on January 18, 2001. Martin van der Doe, the
managing director of selling stockholder, is also the managing director and
general manager of Fruit Chips, B.V., our wholly owned subsidiary.
Number of Shares of Number of Shares of
Common Stock Common Stock
Name Beneficially Owned Percent of Class Registered thereby
------------ ------------------- ---------------- -------------------
Mosvad Investments B.V. 123,830 * 123,830
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* Less than 1%.
The selling stockholder has represented to us that it acquired the shares
of common stock for its own account for investment only and not with a view
towards the public sale or distribution thereof, except pursuant to sales
registered under the Securities Act or exemptions therefrom. In recognition of
the fact that the selling stockholder may wish to be legally permitted to sell
the shares when it deems appropriate, we agreed with the selling stockholder to
file with the Commission under the Securities Act the registration statement
with respect to the sale of the shares from time to time in transactions in the
over-the-counter market, in privately negotiated transactions, or through a
combination of these methods of sale, and have agreed to prepare and file such
amendments and supplements to the registration statement as may be necessary to
keep the registration statement effective until the shares are no longer
required to be registered for the sale thereof by the selling stockholder.
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PLAN OF DISTRIBUTION
All of the shares offered hereby may be sold from time to time by the
selling stockholder or by its registered assigns. The shares offered hereby may
be sold by one or more of the following methods: (a) a block trade in which a
broker or dealer so engaged will attempt to sell the shares as agent but may
purchase and resell a portion of the block as principal to facilitate the
transaction; (b) purchases by a broker or dealer as principal and resale by such
broker or dealer for its account pursuant to this prospectus; (c) ordinary
brokerage transactions and transactions in which the broker solicits purchasers;
(d) privately negotiated transactions; and (e) face-to-face transactions between
sellers and purchasers without a broker-dealer.
The selling stockholder may be deemed to be a statutory underwriter under
the Securities Act. Also any broker-dealers who act in connection with the sale
of the shares hereunder may be deemed to be "underwriters" within the meaning of
Section 2(11) of the Securities Act, and any commissions received by them and
profit on any resale of the shares as principal may be deemed to be underwriting
discounts and commissions under the Securities Act.
In effecting sales, brokers or dealers engaged by the selling stockholder
may arrange for other brokers or dealers to participate. Such brokers or dealers
may receive commissions or discounts from the selling stockholder in amounts to
be negotiated by the selling stockholder. The selling stockholder may enter into
hedging transactions with broker-dealers and the broker-dealers may engage in
short sales of the common stock in the course of hedging the positions they
assume with the selling stockholder (including, in connection with the
distribution of the common stock by such broker-dealers). The selling
stockholder may also engage in short sales of the common stock and may enter
into option or other transactions with broker-dealers that involve the delivery
of the common stock to the broker-dealers, who may then resell or otherwise
transfer such common stock. Such broker-dealers and any other participating
broker-dealers may, in connection with such sales, be deemed to be underwriters
within the meaning of the Securities Act. Any discounts or commissions received
by any such broker-dealers may be deemed to be underwriting discounts and
commissions under the Securities Act.
The selling stockholder may also sell shares in accordance with Rule 144
under the Securities Act, if Rule 144 is then available.
In order to comply with the securities laws of certain states, if
applicable, the shares will be sold in such jurisdictions only through
registered or licensed broker-dealers.
We will pay all of the expenses incident to the filing of this registration
statement, estimated to be $30,000. These expenses include legal and accounting
fees in connection with the preparation of the registration statement of which
this prospectus is a part, legal and other fees in connection with the
qualification of the sale of the shares under the laws of certain states (if
any), registration and filing fees and other expenses. The selling stockholder
will pay all other expenses incident to the offering and sale of the shares to
the public, including commissions and discounts of underwriters, brokers,
dealers or agents, if any. We have agreed to keep the registration of the shares
offered hereby effective until the earlier of the date when all of the shares
offered by the selling stockholder have been sold or one year from the date the
shares were issued.
-10-
DESCRIPTION OF CAPITAL STOCK
General
As of December 31, 2000, our authorized capital stock was 100,000,000
shares of common stock, $.0l par value per share, of which 33,256,427 shares
were outstanding, and 5,000,000 shares of preferred stock, $.0l par value per
share, none of which had been issued.
The following description is qualified in all respects by reference to our
certificate of incorporation and the bylaws.
Common Stock
Each share of common stock entitles the holder thereof to one vote on all
matters submitted to a vote of the stockholders. Since the holders of common
stock do not have cumulative voting rights, holders of more than 50% of the
outstanding shares can elect all of our directors then being elected and holders
of the remaining shares by themselves cannot elect any directors. The holders of
common stock do not have preemptive rights or rights to convert their common
stock into other securities. Holders of common stock are entitled to receive
ratably such dividends as may be declared by our board of directors out of funds
legally available therefor. In the event of our liquidation, dissolution or
winding up, holders of the common stock have the right to a ratable portion of
the assets remaining after payment of liabilities. All outstanding shares of
common stock are fully paid and nonassessable.
Right To Purchase Shares Of Hain Common Stock By An Affiliate Of H.J. Heinz
Company
Under an agreement that we entered with an affiliate of the H.J. Heinz
Company in September 1999, the affiliate of H.J. Heinz has the right to purchase
shares of our common stock to maintain a 19.5% interest in our company.
Preferred Stock
We are authorized by our certificate of incorporation to issue a maximum of
5,000,000 shares of preferred stock, in one or more series and containing such
rights, privileges and limitations including voting rights, dividend rates,
conversion privileges, redemption rights and terms, redemption prices and
liquidation preferences, as our board of directors may, from time to time,
determine.
The issuance of shares of preferred stock pursuant to our board of
directors' authority described above could decrease the amount of earnings and
assets available for distribution to holders of common stock, and otherwise
adversely affect the rights and powers, including voting rights, of such holders
and may have the effect of delaying or preventing us from being subject to a
change in control. See Risk Factors -- "Our Ability To Issue Preferred Stock May
Deter Takeover Attempts." We are not required by the Delaware General
Corporation Law, or the DGCL, to seek stockholder approval prior to any issuance
of authorized but unissued stock and our board of directors does not currently
intend to seek stockholder approval prior to any issuance of authorized but
unissued stock, unless otherwise required by law.
-11-
Options
1993 Executive Stock Option Plan
In July 1993, we adopted the 1993 Executive Stock Option Plan under which
we granted to Irwin D. Simon options to purchase 600,000 shares of our common
stock. The exercise price of options designed to qualify as incentive options is
$3.58 per share and the exercise price of non-qualified options is $3.25 per
share. The options expire in 2003.
1994 Long Term Incentive and Stock Award Plan
In December 1994, we adopted the 1994 Long Term Incentive and Stock Award
Plan, which we refer to in this prospectus as the 1994 Plan. The 1994 Plan, as
amended, provides for the granting of incentive stock options to employees and
directors to purchase up to an aggregate of 6,400,000 shares of our common stock
with a maximum individual limit of 1,000,000 shares in any calendar year. The
1994 Plan is administered by the compensation committee of the board of
directors. All of the options granted to date under the 1994 Plan have been
incentive or non-qualified stock options providing for exercise prices not less
than the fair market price at the date of grant, and expire 10 years after date
of grant. At the discretion of the compensation committee, options are
exercisable upon grant or over an extended vesting period. During fiscal year
1998, options to purchase 299,200 shares were granted at prices from $4.50 to
$14.13 per share, options to purchase 274,400 shares were exercised and options
to purchase 47,800 shares were canceled. During fiscal year 1999, options to
purchase 1,175,600 shares were granted at prices from $12.125 to $21.50 per
share, options to purchase 322,950 shares were exercised and options to purchase
23,750 shares were canceled. During fiscal year 2000, options to purchase
372,550 shares were granted at prices ranging from $21.188 to $33.50 per share,
options to purchase 127,900 shares were exercised and options to purchase 14,750
shares were canceled. At June 30, 2000, 3,658,950 options were available for
grant under the 1994 Plan.
1996 Directors Stock Option Plan
In December 1995, we adopted the 1996 Directors Stock Option Plan, which we
refer to in this prospectus as the Directors Plan. The Directors Plan provides
for the granting of stock options to non-employee directors to purchase up to an
aggregate of 750,000 shares of our common stock. During fiscal year 1998,
options for an aggregate of 67,500 shares were granted at prices of $8.50 and
$19.68 per share, no options were exercised and no options were canceled. During
fiscal year 1999, options for an aggregate of 95,000 shares were granted at a
price of $17.625 per share, options to purchase 90,000 shares were exercised and
no options were canceled. During fiscal year 2000, options for an aggregate of
103,500 shares were granted at prices of $23.25 and $26.063 per share, options
to purchase 80,000 shares were exercised and no options were canceled. At June
30, 2000, 326,500 options are available for grant under the Directors Plan. The
options expire in 2001. No options may be granted under the Directors Plan after
December 2000.
2000 Directors Stock Option Plan
In May 2000, we adopted a new 2000 Directors Stock Option Plan, which we
refer to in this prospectus as the 2000 Directors Plan. The 2000 Directors Plan
provides for granting of stock options
-12-
to non-employee directors to purchase up to an aggregate of 750,000 shares of
our common stock. At June 30, 2000, no options were granted under the 2000
Directors Plan.
Celestial Plans
In connection with our acquisition of Celestial Seasonings, we assumed
Celestial's 1993 Long-Term Incentive Plan and 1994 Non-Employee Director
Compensation Plan, which we refer to in this prospectus collectively as the
Celestial Plans. No future options to purchase shares of common stock will be
granted under the Celestial Plans. As of June 30, 2000 options to purchase
1,267,806 shares of common stock were outstanding under the Celestial Plans.
Warrants
As of December 31, 2000, warrants to purchase an aggregate of 462,198
shares of common stock were outstanding. Each warrant entitles the holder to
purchase one share of common stock, subject to anti-dilution adjustments, at an
exercise price ranging from $3.25 to $12.69 per share.
Certificate of Incorporation and Bylaws
Pursuant to the DGCL, the power to adopt, amend and repeal bylaws is
conferred solely upon the stockholders unless the corporation's certificate of
incorporation also confers such power upon the board of directors. Under our
certificate of incorporation, our board of directors is granted the power to
amend our bylaws. Our bylaws provide that each director has one vote on each
matter for which directors are entitled to vote. Our certificate of
incorporation and/or bylaws also provide that (1) from time to time, by
resolution, our board of directors has the power to change the number of
directors, (2) the directors will hold office until the next annual meeting of
stockholders and until their respective successors are elected and qualified,
and (3) special meetings of stockholders may only be called by our board of
directors or 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 deemed undesirable by our
board of directors. Our board of directors currently has seven members and one
vacancy.
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 owns
at least 85% of the outstanding voting stock, 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
-13-
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.
LEGAL MATTERS
Certain legal matters with respect to the validity of the common stock
offered hereby will be passed upon for us by Cahill Gordon & Reindel, New York,
New York.
EXPERTS
The consolidated financial statements of The Hain Celestial Group, Inc. and
Subsidiaries appearing in The Hain Celestial Group Inc. and Subsidiaries Annual
Report (Form 10-K) for the year ended June 30, 2000, have been audited by Ernst
& Young LLP, independent auditors, as set forth in their report thereon included
therein and incorporated herein by reference which, as to the years 1999 and
1998, are based in part on reports of Deloitte and Touche LLP, independent
auditors. Such consolidated financial statements are incorporated herein by
reference in reliance upon such report given on the authority of such firms as
experts in accounting and auditing.
The consolidated financial statements and the related financial statement
schedules of Celestial Seasonings, Inc. incorporated in this prospectus by
reference from Celestial Seasonings, Inc.'s Annual Report on Form 10-K/A for the
year ended September 30, 1999 have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their reports, which are incorporated by
reference, and have been so incorporated in reliance upon the reports of such
firm given upon their authority as experts in accounting and auditing.
-14-
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Commission. You can receive copies of such reports, proxy
and information statements, and other information, at prescribed rates, from the
Commission by addressing written requests to the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549.
In addition, you can read such reports, proxy and information statements, and
other information at the public reference facilities and at the regional offices
of the Commission, Washington, D.C., New York, New York and Chicago, Illinois.
Please call the Commission at 1-800-SEC-0330 for further information on the
public reference rooms. The Commission also maintains a web site that contains
reports, proxy and information statements and other information regarding
registrants such as us that file electronically with the Commission. The address
of the Commission's web site is http://www.sec.gov.
This prospectus is part of a registration statement on Form S-3 we filed
with the Commission to register the shares that the selling stockholders will
sell in this offering. This prospectus does not include all of the information
contained in the registration statement. For further information about us and
the securities offered in this prospectus, you should review the registration
statement and the information incorporated by reference therein. You can inspect
or copy the registration statement, at prescribed rates, at the Commission's
public reference facilities at the address listed above.
The Commission allows us to "incorporate by reference" information into the
prospectus, which means that we can disclose important information to you by
referring you to those documents filed separately with the Commission. The
information incorporated by reference is considered part of this prospectus, and
information that we file later with the Commission will automatically update and
supersede this information.
This prospectus incorporates by reference the documents listed below that
we previously filed with the Commission. These documents contain important
information about us and our finances:
HAIN'S SEC FILINGS
(FILE NO. 0-22818) PERIOD
- -------------------------------------- -------------------------------------
Annual Report on Form 10-K Fiscal year ended June 30, 2000
Quarterly Reports on Form 10-Q Quarter ended September 30, 2000
Current Reports on Form 8-K Filed on April 27, 1999, as amended
by Amendment No. 3 dated June 18,
1999, and September 19, 2000
CELESTIAL'S SEC FILINGS
(FILE NO. 0-22018) PERIOD
- -------------------------------------- -------------------------------------
Annual Report on Form 10-K Fiscal year ended September 30, 1999
Amendment Annual Report on Form 10-K/A Filed on December 31, 1999
Quarterly Report on Form 10-Q Quarter ended December 31, 1999
Current Report on Form 8-K Filed on March 14, 2000
We also incorporate by reference additional documents that we may file with
the Commission between the date of this prospectus and the completion of the
offering. These additional documents include periodic reports, such as Annual
Reports on Form 10-K, Quarterly Reports on Form 10-Q and
-15-
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 President, The Hain Celestial Group, Inc., 50 Charles
Lindbergh Boulevard, Uniondale, New York, 11553, (516) 237-6200.
-16-
================================================================================
The Hain Celestial Group, Inc.
Common Stock
---------------
PROSPECTUS
----------------
, 2001
================================================================================
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the costs and expenses, other than discounts
and commissions, if any, incurred in connection with the sale of common stock
being registered (all amounts are estimated except the Securities and Exchange
Commission registration fee and the Nasdaq National Market listing fee). We will
bear all expenses incurred in connection with the sale of the common stock being
registered hereby, and the selling stockholder will not bear any portion of such
expenses, other than commissions and discounts relating to the shares to be sold
by the selling stockholders, if any.
Securities and Exchange Commission Registration Fee......... $1,021
Nasdaq National Market Listing Fee.......................... 1,238
Legal Fees and Expenses..................................... 20,000
Accounting Fees and Expenses................................ 7,000
Miscellaneous............................................... 741
---
Total.............................................. $30,000
=======
II-1
Item 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
1. Indemnification. Delaware Law. Section 145 of the Delaware General
Corporation Law, or the DGCL, provides that a corporation may indemnify a
director or officer by a provision contained in the certificate of incorporation
or by-laws or by a duly authorized resolution of its stockholders or directors
or by agreement, provided that no indemnification may be made to or on behalf of
any director or officer if a judgment or other final adjudication adverse to the
director or officer establishes that his acts were committed in bad faith or
were the result of active and deliberate dishonesty and material to the cause of
action, or that such director or officer personally gained in fact a financial
profit or other advantage to which he was not legally entitled.
Section 145(a) of the DGCL provides that a corporation may indemnify a
director or officer 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 or officer acted, in good faith, for a purpose which he
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 his conduct was unlawful.
Section 145(b) of the DGCL provides that a corporation may indemnify a
director or officer, 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 director or officer 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 director or officer 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, the director or officer is fairly and
reasonably entitled to indemnity for such expenses as the Court of Chancery or
such other court deems proper
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(c) of the DGCL provides that indemnification by a corporation is mandatory
in any case in which a present or former director or officer has been
successful, whether on the merits or otherwise, in defending an action. In the
event that the director or officer has not been successful or the action is
settled, indemnification must be authorized by the appropriate corporate action
as set forth in Section 145(d).
Section 145(g) of the DGCL authorizes the purchase and maintenance of
insurance to indemnify (1) a corporation for any obligation which it incurs as a
result of the indemnification of directors and officers under the above section
or (2) directors and officers in instances in which they may be indemnified by a
corporation under such section.
2. Hain's Certificate of Incorporation and Bylaws. Article Eleventh of the
Certificate of Incorporation and Article IV of the Bylaws of Hain provides for
Hain 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.
II-2
Item 16. EXHIBITS.
The following exhibits are filed as part of this Registration Statement:
Exhibit No. Description
- ----------- -----------
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 Deloitte & Touche LLP, Independent Auditors.
23.3 Consent of Cahill Gordon & Reindel (included in Exhibit 5).
24 Powers of Attorney authorizing execution of Registration Statement on Form
S-3 on behalf of certain directors of Registrant (included on signature
pages to this Registration Statement).
II-3
Item 17. UNDERTAKINGS.
(A) 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:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933; unless the information required to be included
in such post-effective amendment is contained in a periodic report
filed by the Company pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 and incorporated herein by reference;
(b) To reflect in the prospectus any acts 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, unless the information required to be
included in such post-effective amendment is contained in a periodic
report filed by the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 and incorporated herein by
reference; and
(c) 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.
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.
(B) The undersigned registrant hereby undertakes 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 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; and
(C) 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
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
II-4
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.
(D) The undersigned registrant hereby undertakes that:
1. For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
the form of prospectus filed by the registrant pursuant to Rule 424(b)(1)
or (4) or 497(h) under the Securities Act shall be deemed to be part of
this registration statement as of the time it was declared effective.
2. For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus 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.
II-5
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 Uniondale, State of New York, on this 1st day of
February, 2001.
THE HAIN CELESTIAL GROUP, INC.
By: /s/ Gary M. Jacobs
------------------------------------------------
Name: Gary M. Jacobs
Title: Executive Vice President - Finance,
Chief Financial Officer,
Treasurer and Secretary
Each person whose signature appears below in so signing also makes,
constitutes and appoints Irwin D. Simon and Gary M. Jacobs, and each of them
acting alone, his true and lawful attorney-in-fact, with full power of
substitution, for him in any an all amendments and post-effective amendments to
this registration statement, and any registration statement for the same
offering covered by this registration statement that is to be effective upon
filing pursuant to Rule 462(b) under the Securities Act, and all post-effective
amendments thereto together with exhibits to any such registration statements or
amendments and other documents in connection therewith, and hereby ratifies and
confirms all that said attorney-in-fact or said attorney-in-fact's substitute or
substitutes may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed on February 1, 2001 by the following
persons in the capacities indicated.
/s/ Irwin D. Simon Chairman of the Board, President and Chief
- --------------------------- Executive Officer (Principal Executive
Irwin D. Simon Officer)
/s/ Gary M. Jacobs Executive Vice President - Finance, Chief
- --------------------------- Financial Officer, Treasurer and Secretary
Gary M. Jacobs (Principal Financial and Accounting Officer)
Director
- --------------------------- Director
Morris J. Siegel
- --------------------------- Director
Andrew R. Heyer
II-6
- --------------------------- Director
Beth L. Bronner
/s/ Jack Futterman
- --------------------------- Director
Jack Futterman
/s/ James S. Gold Director
--------------------------
James S. Gold
/s/ Joseph Jimenez Director
- ---------------------------
Joseph Jimenez
/s/ Marina Hahn Director
- ---------------------------
Marina Hahn
/s/ Gregg A. Ostrander Director
- ---------------------------
Gregg A. Ostrander
/s/ Nigel Clare Director
- ---------------------------
Nigel Clare
/s/ Roger Meltzer Director
- ---------------------------
Roger Meltzer
II-7
INDEX TO EXHIBITS
Exhibit Description
- ------- -----------
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 Deloitte & Touche LLP, Independent Auditors.
23.3 Consent of Cahill Gordon & Reindel (included in Exhibit 5).
24 Powers of Attorney authorizing execution of Registration Statement on Form
S-3 on behalf of certain directors of Registrant (included on signature
pages to this Registration Statement).