Exhibit 5
AGREEMENT AND CROSS RECEIPT
AGREEMENT AND CROSS RECEIPT dated June 19, 2000 between Boulder, Inc.
(formerly Earth's Best, Inc.), an Idaho corporation ("EB"), and The Hain
Celestial Group, Inc. (formerly The Hain Food Group, Inc.), a Delaware
corporation ("Hain").
WHEREAS, on September 24, 1999, EB purchased shares of Hain common stock,
par value $.01 per share (the "Hain Common Stock"), constituting 19.5% of the
then outstanding Hain Common Stock on that date (the "Initial Investment");
WHEREAS, in connection with the Initial Investment, EB and Hain entered
into: (1) a Securities Purchase Agreement dated September 24, 1999 (the
"Securities Purchase Agreement"); (2) together with Irwin D. Simon, an
Investors Agreement dated September 24, 1999 (the "Investors Agreement"); and
(3) a Registration Rights Agreement dated September 24, 1999 (the "Registration
Rights Agreement");
WHEREAS, prior to the date hereof, EB notified Hain of the exercise of its
right under Section 5.03 of the Investors Agreement to purchase shares of Hain
Common Stock in the public market to maintain its initial ownership percentage
following the issuance of shares of Hain Common Stock by Hain upon the exercise
of stock options, warrants and upon the conversion of outstanding convertible
notes;
WHEREAS, on May 30, 2000, in connection with Hain's acquisition of
Celestial Seasonings, Inc., Hain issued an additional 10,662,224 shares of Hain
Common Stock (the "Celestial Issuance");
WHEREAS, in connection with the Celestial Issuance, Hain provided EB with
notice dated May 31, 2000 of its right under Section 5.01 of the Investors
Agreement to purchase up to 2,582,774 shares (the "Additional Shares") of Hain
Common Stock at the closing price for shares of Hain Common Stock on the Nasdaq
National market on May 30, 2000 of $30.875 per share (the "Closing Price"); and
WHEREAS, the board of directors of Hain has approved the issuance and sale
of the Additional Shares at the Closing Price and the board of directors of EB
has approved the purchase of the Additional Shares by EB at the Closing Price.
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NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein and for other good and valuable consideration, the receipt of
which is hereby acknowledged, EB and Hain hereby agree as follows:
1. Additional Shares.
(a) On the date hereof, Hain agrees to issue and sell, and EB agrees
to purchase, the Additional Shares at the Closing Price.
(b) Each of EB and Hain agree that the Additional Shares shall
constitute "Shares" as defined in and for the purposes of the Securities
Purchase Agreement, the Investors Agreement and the Registration Rights
Agreement.
2. Conditions of Obligations of EB. The closing conditions contained in
Sections 3.1(a), (b) and (c) of the Securities Purchase Agreement shall be
satisfied or waived as of the date hereof (for purposes of this Section 2, the
term "Closing Date" as used in the Securities Purchase Agreement shall mean the
date hereof).
3. Conditions of Obligations of Hain. The closing conditions contained in
Sections 3.2(a), (b) and (c) of the Securities Purchase Agreement shall not be
satisfied or waived as of the date hereof (for purposes of this Section 3, the
term "Closing Date" as used in the Securities Purchase Agreement shall mean the
date hereof).
4. Cross Receipt. EB delivers to Hain herewith a wire transfer of
immediately available funds in the amount of $79,743,147.25 constituting full
payment by EB to Hain for the Additional Shares and acknowledges receipt of the
certificates representing the Additional Shares. Hain acknowledges receipt of
the funds referred to above as full payment for the Additional Shares.
5. Miscellaneous.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF
LAWS PROVISIONS THEREOF.
(b) Except as expressly provided for herein, the Securities Purchase
Agreement, the Investors Agreement and the Registration Rights Agreement
shall remain in full force and effect.
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(c) This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute
one and the same instrument.
(d) This Agreement may not be amended or modified without the written
consent of EB and Hain, nor shall any waiver be effective against any
party unless in a writing executed on behalf of such party.
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IN WITNESS WHEREOF, EB and Hain have caused this Agreement to be executed
and delivered by the undersigned duly authorized officers as of the day and
year first above written.
BOULDER, INC. (formerly
EARTH'S BEST INC.)
By: /s/ Robert Yoshida
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Name: Robert Yoshida
Title: President
THE HAIN CELESTIAL GROUP,
INC.
By: /s/ Gary M. Jacobs
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Name: Gary M. Jacobs
Title: Sr VP Finance
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