As filed with the Securities and Exchange Commission on October 21, 1998
Registration No. 333-____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
TWINLAB CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 11-3317986
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
150 MOTOR PARKWAY, SUITE 210
HAUPPAUGE, NEW YORK 11788
(Address of Principal Executive Offices)
---------------
TWINLAB CORPORATION
1998 STOCK INCENTIVE PLAN
(Full Title of the Plan)
PHILIP M. KAZIN, ESQ.
CHIEF LEGAL OFFICER AND GENERAL COUNSEL
TWINLAB CORPORATION
150 MOTOR PARKWAY, SUITE 210
HAUPPAUGE, NEW YORK 11788
(Name and Address of Agent for Service)
(516) 467-3140
(Telephone Number, Including Area Code,
of Agent for Service)
COPIES TO:
Howard A. Sobel, Esq.
Kramer, Levin, Naftalis & Frankel
919 Third Avenue
New York, New York 10022
(212) 715-9100
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
Proposed Proposed
Maximum Maximum
Title of Offering Aggregate Amount of
Securities to Amount to be Price Per Offering Registration
be Registered Registered Share(1) Price Fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common 1,000,000 $17.75 $17,750,000 $5,236.25
Stock (par shares
value $1.00
per share)
====================================================================================================================================
</TABLE>
(1) Estimated, in accordance with 17 CFR 230.457(c), solely for the purpose
of calculating the registration fee. The Proposed Maximum Offering Price
Per Share is based on the average of the high and low prices reported by
the Nasdaq National Market of The Nasdaq Stock Market on October 15,
1998, which is within five (5) business days prior to the date of this
Registration Statement.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference in this Registration
Statement the following documents:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the registrant document
referred to in (a) above;
(c) The Registrant's Registration Statement on Form 8-A, filed pursuant
to Section 12(g) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), which contains a description of the Common Stock, including any
amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all
securities offered hereby 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 of such
documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
The legality of the issuance of the shares has been passed upon for the
Registrant by Kramer, Levin, Naftalis & Frankel.
Item 6. Indemnification of Directors and Officers.
Reference is made to Section 102(b)(7) of the Delaware General
Corporation Law (the "DGCL"), which permits a corporation in its certificate of
incorporation or an amendment thereto to eliminate or limit the personal
liability of a director for violations of the director's fiduciary duty, except
(i) for any breach of the director's fiduciary duty of loyalty to the
corporation or its stockholders (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
pursuant to Section 174 of the DGCL (providing for liability of directors for
unlawful payment of dividends or unlawful stock purchases or redemptions), or
(iv) for any transaction from which the director derived an improper personal
benefit. The Registrant's Second Amended and Restated Certificate of
Incorporation contains provisions permitted by Section 102(b)(7) of the DGCL.
Reference is made to Section 145 of the DGCL which provides that a
corporation may indemnify any persons, including directors and officers, who
are, or are threatened to be made, parties to any threatened, pending or
completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of such
corporation), by reason of the fact that such person is or was a director,
officer, employee or agent of such corporation, or is or was serving at the
request of such corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection
-2-
<PAGE>
with such action, suit or proceeding, provided such director, officer, employee
or agent acted in good faith and in a manner he reasonably believed to be in or
not opposed to the corporation's best interests and, with respect to any
criminal action or proceedings, had no reasonable cause to believe that his
conduct was unlawful. A Delaware corporation may indemnify directors and/or
officers in an action or suit by or in the right of the corporation under the
same conditions, except that no indemnification is permitted without judicial
approval if the director or officer is adjudged to be liable to the corporation.
Where a director or officer is successful on the merits or otherwise in the
defense of any action referred to above, the corporation must indemnify him or
her against the expenses which such director or officer actually and reasonably
incurred.
The Registrant's Second Amended and Restated Certificate of
Incorporation and Amended and Restated Bylaws provide for the indemnification of
directors and officers of the Registrant to the fullest extent permitted by the
DGCL.
The Registrant maintains liability insurance for each director and
officer for certain losses arising from claims or charges made against them
while acting in their capacities as directors or officers of the Registrant.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Number Description
-------------- -----------
4.1 Second Amended and Restated Certificate
of Incorporation of the Registrant, as
amended (incorporated by reference to
Exhibit 3.4 to Amendment No. 1 to the
Registration Statement on Form S-4, dated
September 18, 1996, filed by Twin
Laboratories Inc., Registration No.
333-6781).
4.2 Amended and Restated By-laws of the
Registrant (incorporated by reference to
Exhibit 3.5 to Amendment No. 1 to the
Registration Statement on Form S-4, dated
September 18, 1996, filed by Twin
Laboratories Inc., Registration No.
333-6781).
5 Opinion of Kramer, Levin, Naftalis &
Frankel regarding legality of securities
being registered (including consent).
23.1 Consent of Independent Auditors.
23.2 Consent of Kramer, Levin, Naftalis &
Frankel (see Exhibit Number 5 above).
-3-
<PAGE>
Item 9. Undertakings.
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 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, 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 the time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
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 Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to 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 therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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 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 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.
-4-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Hauppauge, State of New York, on this 21st day of
October, 1998.
TWINLAB CORPORATION
By:/s/ ROSS BLECHMAN
-----------------
Name: Ross Blechman
Title: Chairman of the Board, Chief
Executive Officer and President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons on October 23,
1998 in the capacities indicated.
Signature Title(s)
--------- --------
/s/ ROSS BLECHMAN Chairman of the Board, Chief Executive Officer
------------- and President
Ross Blechman
/s/ NEIL BLECHMAN Executive Vice President and Director
-------------
Neil Blechman
/s/ BRIAN BLECHMAN Executive Vice President and Director
--------------
Brian Blechman
/s/ STEVE BLECHMAN Executive Vice President and Director
--------------
Steve Blechman
/s/ DEAN BLECHMAN Executive Vice President and Director
-------------
Dean Blechman
/s/ STEPHEN L. WELLING Director
------------------
Stephen L. Welling
/s/ JONATHAN D. SOKOLOFF Director
--------------------
Jonathan D. Sokoloff
/s/ JOHN G. DANHAKL Director
---------------
John G. Danhakl
/s/ JENNIFER HOLDEN DUNBAR Director
----------------------
Jennifer Holden Dunbar
<PAGE>
EXHIBIT INDEX
Exhibit Number Description
-------------- -----------
4.1 Second Amended and Restated Certificate of
Incorporation of the Registrant, as amended
(incorporated by reference to Exhibit 3.4 to
Amendment No. 1 to the Registration Statement on
Form S-4, dated September 18, 1996, filed by Twin
Laboratories Inc., Registration No. 333-6781).
4.2 Amended and Restated By-laws of the Registrant
(incorporated by reference to Exhibit 3.5 to
Amendment No. 1 to the Registration Statement on
Form S-4, dated September 18, 1996, filed by Twin
Laboratories Inc., Registration No. 333-6781).
5 Opinion of Kramer, Levin, Naftalis & Frankel
regarding legality of securities being registered
(including consent).
23.1 Consent of Independent Auditors.
23.2 Consent of Kramer, Levin, Naftalis & Frankel (see
Exhibit Number 5 above).
EXHIBIT 5
[LETTERHEAD OF KRAMER, LEVIN, NAFTALIS & FRANKEL]
October 21, 1998
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We have acted as counsel to Twinlab Corporation, a Delaware
corporation (the "Registrant"), in connection with the preparation and filing of
a Registration Statement on Form S-8 (the "Registration Statement") with the
Securities and Exchange Commission (the "Commission"), with respect to the
registration under the Securities Act of 1933, as amended (the "Act"), of an
aggregate of 1,000,000 shares (the "Shares") of common stock, par value $1.00
per share (the "Common Stock"), to be issued pursuant to the Registrant's 1998
Stock Incentive Plan (the "Plan").
In connection with the registration of the Shares, we have
reviewed copies of the Registration Statement, the Plan, the Second Amended and
Restated Certificate of Incorporation and the Amended and Restated By-laws of
the Registrant, and such documents and records as we have deemed necessary to
enable us to express an opinion on the matters covered hereby.
<PAGE>
Securities and Exchange Commission
October 21, 1998
Page Two
We have also examined and relied upon representations,
statements, or certificates of public officials and officers and representatives
of the Registrant.
Based upon the foregoing, we are of the opinion that the Shares
covered by the Registration Statement, following the granting of the options and
restricted stock described in the Plan and upon delivery of such Shares and
payment therefor at the prices and in accordance with the terms stated in the
Plan, will be validly issued, fully paid and non-assessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement. In giving the foregoing consent, we do not thereby admit
that we are in the category of persons whose consent is required under Section 7
of the Act or the rules and regulations of the Commission thereunder.
We are delivering this opinion to the Registrant, and no person
other than the Registrant may rely upon it.
Very truly yours,
/s/ Kramer, Levin, Naftalis & Frankel
-------------------------------------
Kramer, Levin, Naftalis & Frankel
EXHIBIT 23
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Registration
Statement of Twinlab Corporation on Form S-8 of our report dated February 4,
1998, appearing in the Annual Report on Form 10-K of Twinlab Corporation for the
year ended December 31, 1997.
DELOITTE & TOUCHE LLP
Jericho, New York
October 15, 1998
