As filed with the Securities and Exchange Commission on December 14, 1998
Registration No. 333-38915
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------
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
Uniondale, New York 11553
(Address of principal executive offices) (Zip Code)
THE HAIN FOOD GROUP, INC.
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)
------------------------------
copy to:
Roger Meltzer, Esq.
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
(212) 701-3000
------------------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=============================================================================================================================
Title of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered Offering Price Per Share Aggregate Offering Price (1) Registration Fee(1)
(1)
- - -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value 1,745,000 shares $16.7597 $29,245,564 $8,130.27
$.01 per share
=============================================================================================================================
</TABLE>
(1) Computed in accordance with Rule 457(h) and 457(c) under the Securities Act
of 1933, as amended. Such computation is based on (i) the weighted average
exercise price of $13.2971 per share covering 830,800 shares of the Company's
common stock, par value $.01 per share (the "Common Stock") issuable upon the
exercise of outstanding options and (ii) the estimated exercise price of
$19.9063 per share covering 914,200 shares of Common Stock issuable upon the
exercise of authorized and available options and computed in accordance with
Rule 457 by averaging the high and low sales prices of the Company's Common
Stock reported on the Nasdaq National Market for December 10, 1998. Item 1.
<PAGE>
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.
("Hain" or the "Registrant") with the Securities and Exchange Commission (the
"Commission") and are hereby incorporated by reference in this Registration
Statement:
(1) The description of Hain's Common Stock contained in Hain'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) Hain's annual report on Form 10-K filed with Commission for the fiscal
year ended June 30, 1998;
(3) Hain's quarterly report on Form 10-Q filed with the Commission for the
three-month period ended September 30, 1998;
(4) Hain's current reports on Form 8-K dated July 14, 1998 and Form 8-K/A
dated July 23, 1998;
(5) Westbrae Natural, Inc.'s annual report on Form 10-K filed with
Commission (under Westbrae's prior name of Vestro Natural Foods, Inc.)
for the fiscal year ended December 31, 1996 (the "Vestro 10-K"); and
(6) Westbrae Natural Inc.'s quarterly reports on Form 10-Q filed with the
Commission for the three-month periods ended March 31, 1997 and June
30, 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.
II-1
<PAGE>
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 Registrant 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.
Not applicable.
II-2
<PAGE>
ITEM 8. EXHIBITS.
The following exhibits are filed as part of this Registration Statement:
Exhibit No. Description
4.1 The Hain Food Group, Inc. 1993 Executive Stock Option
Plan (incorporated by reference to Exhibit 4.2 to the
Registrant'sRegistration 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
StockAward 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
16.1 Letter from McGinty & Associates regarding change in
certifying accountants. (Incorporated by reference to
Exhibit 16.1 of the Registrant's Registration Statement
on Form S-4/S-3, File No. 333-56319)
16.2 Letter from Katz & Bloom, LLC regarding change in
certifying accountants. (Incorporated by reference to
Exhibit 16.2 of the Registrant's Registration Statement
on Form S-4/S-3, File No. 333-56319)
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of PricewaterhouseCoopers LLP, Independent
Auditors
23.3 Consent of McGladrey & Pullen, LLP, Independent
Auditors
23.4 Consent of McGinty & Associates, Independent Auditors
23.5 Consent of Katz & Bloom, LLC, Independent Auditors
23.6 Consent of Cahill Gordon & Reindel (included in Exhibit
5)
II-3
<PAGE>
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
the Registration Statement)
II-4
<PAGE>
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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective 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) The undersigned registrant hereby undertakes that for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Sec-
II-5
<PAGE>
tion 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 Securities Act and will be governed by the final
adjudication of such issue.
II-6
<PAGE>
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 State of New
York, on this 14th day of December 1998.
THE HAIN FOOD GROUP, INC.
By: /s/Irwin D. Simon
---------------------------------------------
Name: Irwin D. Simon
Title: President and Chief Executive Officer
II-7
<PAGE>
Each person whose signature appears below hereby constitutes and appoints
Irwin D. Simon, the President and Chief Executive Officer of the Registrant, and
Gary M. Jacobs, 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.
<TABLE>
<CAPTION>
<S> <C> <C>
/s/Andrew R. Heyer Chairman of the Board of Directors December 14, 1998
- - -----------------------------
Andrew R. Heyer
/s/Irwin D. Simon President, Chief Executive December 14, 1998
- - ------------------------------ Officer and Director
Irwin D. Simon
/s/Gary M. Jacobs Senior Vice President - Finance, December 14, 1998
- - ------------------------------ Treasurer, Assistant Secretary and
Gary M. Jacobs Chief Financial Officer
/s/Beth L. Bronner Director December 14, 1998
- - ------------------------------
Beth L. Bronner
/s/William J. Fox Director December 14, 1998
- - ------------------------------
William J. Fox
/s/Jack Futterman Director December 14, 1998
- - ------------------------------
Jack Futterman
/s/James S. Gold Director December 14, 1998
- - ------------------------------
James S. Gold
/s/Kenneth J. Daley Director December 14, 1998
- - ------------------------------
Kenneth J. Daley
</TABLE>
II-8
<PAGE>
INDEX TO EXHIBITS
Exhibit Description
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
16.1 Letter from McGinty & Associates regarding change in
certifying accountants. (Incorporated by reference to
Exhibit 16.1 of the Registrant's Registration Statement
on Form S-4/S-3, File No. 333-56319)
16.2 Letter from Katz & Bloom, LLC regarding change in
certifying accountants. (Incorporated by reference to
Exhibit 16.2 of the Registrant's Registration Statement
on Form S-4/S-3, File No. 333-56319)
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of PricewaterhouseCoopers LLP, Independent
Auditors
23.3 Consent of McGladrey & Pullen, LLP, Independent
Auditors
23.4 Consent of McGinty & Associates, Independent Auditors
23.5 Consent of Katz & Bloom, LLC, Independent Auditors
23.6 Consent of Cahill Gordon & Reindel (included in Exhibit
5)
24 Powers of Attorney (included on signature pages of this
Registration Statement)
II-9
EXHIBIT 5
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
December 14, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: The Hain Food Group, Inc.
Registration Statement on Form S-8
(File No. 333-38915)
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 (i) 1,545,000 shares of the common
stock of the Company, $.01 par value (the "Common Stock"), offered under The
Hain Food Group, Inc. 1994 Long Term Incentive and Stock Award Plan (the "1994
Plan") and (ii) 200,000 shares of Common Stock offering under The Hain Food
Group, Inc. 1996 Directors Stock Option Plan (the "Directors Plan").
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 1994
Plan and the Directors Plan 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 the Registration Statement
(Form S-8 No. 333-38915) for the registration of 1,745,000 shares of common
stock pertaining to the 1994 Long Term Incentive and Stock Award Plan and the
1996 Directors Stock Option Plan of The Hain Food Group, Inc. and to the
incorporation by reference therein of our report dated September 10, 1998, with
respect to the consolidated financial statements and schedule of The Hain Food
Group, Inc. included in its Annual Report (Form 10-K) for the year ended June
30, 1998, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Melville, New York
December 11, 1998
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of The Hain Food Group, Inc. of our report dated March 25,
1997 appearing on page F-1 of the Westbrae Natural, Inc. (formerly Vestro
Natural Foods, Inc.) Annual Report on Form 10-K for the year ended December 31,
1996.
/s/ PRICEWATERHOUSECOOPERS LLP
Costa Mesa, California
December 11, 1998
Exhibit 23.3
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation of our reports, relating to the
consolidated financial statements of AMI Operating, Inc. and subsidiaries dated
May 27, 1998 and the financial statements of Dana Alexander, Inc., dated May 22,
1998 and the financial statements of Garden of Eatin', Inc., dated May 8, 1998,
included in the Form 8-K/A dated July 23, 1998 and incorporated by reference in
the previously filed Registration Statement of The Hain Food Group, Inc. on Form
S-4/S-3 (No. 333-57343) and incorporated by reference in the Registration
Statement of The Hain Food Group, Inc. on Form S-8 filed on or about December
14, 1998.
/s/ MCGLADREY & PULLEN, LLP
Anaheim, California
December 11, 1998
Exhibit 23.4
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation of our report, relating to the
consolidated financial statements of Arrowhead Mills, Inc., dated October 4,
1996, except for Note 10, as to which the date is June 1, 1998, for the years
ended July 31, 1996 and 1995 included in the Form 8-K/A dated July 23, 1998 and
incorporated by reference in the previously filed Registration Statement of The
Hain Food Group, Inc. on Form S-4/S-3 (No. 333-57343) and incorporated by
reference in the Registration Statement of The Hain Food Group, Inc. on Form S-8
filed on or about December 14, 1998.
/s/ MCGINTY & ASSOCIATES
December 11, 1998
Exhibit 23.5
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation of our report, relating to the
financial statements of Dana Alexander, Inc. dated March 19, 1997 except for
Note L, as to which date is June 2, 1997, for the years ended December 31, 1996
and 1995 included in the Form 8-K/A dated July 23, 1998 and incorporated by
reference in the previously filed Registration Statement of The Hain Food Group,
Inc. on Form S-4/S-3 (No. 333-57343) and incorporated by reference in the
Registration Statement of The Hain Food Group, Inc. on Form S-8 filed on or
about December 14, 1998.
/s/ KATZ & BLOOM, LLC
December 11, 1998
