As filed with the Securities and Exchange Commission on September 17, 1999
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
Hauppauge, New York 11788
(Address of Principal Executive Offices)
---------------
TWINLAB CORPORATION 1999 STOCK
INCENTIVE PLAN FOR OUTSIDE DIRECTORS
(Full Title of the Plan)
Philip M. Kazin, Esq.
Chief Legal Officer and General Counsel
Twinlab Corporation
150 Motor Parkway
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 LLP
919 Third Avenue
New York, New York 10022
(212) 715-9100
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein.
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 Price Fee
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common 6,184 $ 8.624(2) $ 53,331 $ 14.83
Stock (par shares(1)
value $1.00 $ 7.3125(3) $ 430,092 $ 119.57
per share) 58,816 shares
===================================================================================================================================
</TABLE>
(1) Representing shares which were issued pursuant to the Plan on June 18,
1999.
(2) The last sale price per share on June 18, 1999.
(3) 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 for the Common
Stock reported by the Nasdaq National Market of The Nasdaq Stock Market on
September 13, 1999, 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:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998, filed March 31, 1999 pursuant to Section 13(a) of the
Securities Exchange Act of 1934, as amended (the "1934 Act");
(2) The Company's Annual Report on Form 10-K405/A for the fiscal year
ended December 31, 1998, filed April 30, 1999 pursuant to Section 13(a) of the
1934 Act;
(3) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1999, filed May 12, 1999 pursuant to Section 13(a) of the 1934
Act;
(4) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 1999, filed August 13, 1999 pursuant to Section 13(a) of the 1934
Act;
(5) The Company's Quarterly Report on Form 10-Q/A for the fiscal
quarter ended March 31, 1998, filed March 30, 1999 pursuant to Section 13(a) of
the 1934 Act;
(6) The Company's Quarterly Report on Form 10-Q/A for the fiscal
quarter ended June 30, 1998, filed March 30, 1999 pursuant to Section 13(a) of
the 1934 Act;
(7) The Company's Quarterly Report on Form 10-Q/A for the fiscal
quarter ended September 30, 1998, filed March 30, 1999 pursuant to Section 13(a)
of the 1934 Act;
(8) The Company's Registration Statement on Form 8-A, filed pursuant to
Section 12(g) of the Exchange Act, which contains a description of the Company's
Common Stock, including any amendment or report filed for the purpose of
updating such description; and
(9) All documents subsequently filed by the Company with the SEC
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act, prior to the
filing of a post-effective amendment to the 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.
Not applicable.
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
-3-
<PAGE>
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 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 By-laws 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.
Section 4 of the Plan provides that the Registrant shall indemnify each
member of the Committee and any other director or employee of the Company to
whom any duty or power relating to the administration or interpretation of the
Plan has been delegated against any costs or expenses arising out of such
activities, except where the individual acted in bad faith or without reasonable
belief that it was in the best interests of the Company.
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
-4-
<PAGE>
Statement on Form S-4, dated September 18, 1996,
filed by Twin Laboratories Inc., Registration No.
333-6781).
4.3 Form of Option Agreement.
4.4 Form of Restricted Stock Grant Agreement.
5 Opinion of Kramer Levin Naftalis & Frankel LLP
regarding legality of securities being registered
(including consent).
23.1 Consent of Independent Auditors.
23.2 Consent of Kramer Levin Naftalis & Frankel LLP
(contained in the Opinion filed as Exhibit 5
hereto).
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.
-5-
<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 17th day of
September, 1999.
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 in the
capacities and on the dates indicated.
Signature Title(s) Date
--------- -------- ----
/s/ Ross Blechman
- ------------------------ Chairman of the Board, President September 17, 1999
Ross Blechman and Chief Executive Officer
/s/ Neil Blechman
- ------------------------ Executive Vice President, September 17, 1999
Neil Blechman Secretary and Director
/s/ Brian Blechman
- ------------------------ Executive Vice President, September 17, 1999
Brian Blechman Treasurer and Director
/s/ Steve Blechman
- ------------------------ Executive Vice President and September 17, 1999
Steve Blechman Director
/s/ Dean Blechman
- ------------------------ Executive Vice President and September 17, 1999
Dean Blechman Director
/s/ Stephen L. Welling
- ------------------------ President, Health and Natural September 17, 1999
Stephen L. Welling Food Store Division, and
Director
/s/ Jonathan D. Sokoloff
- ------------------------
Jonathan D. Sokoloff Director September 17, 1999
/s/ John G. Danhakl
- ------------------------
John G. Danhakl Director September 17, 1999
/s/ William U. Westerfield
- ------------------------
William U. Westerfield Director September 17, 1999
/s/ Robert S. Apatoff
- ------------------------
Robert S. Apatoff Director September 17, 1999
Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have 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 September 17, 1999.
<PAGE>
Twinlab Corporation 1999 Stock Incentive Plan for
Outside Directors
By: /s/ Ross Blechman
------------------
Name: Ross Blechman
Title: Chairman of the Board,
President and Chief Executive Officer
<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).
4.3 Form of Option Agreement.
4.4 Form of Restricted Stock Grant Agreement.
5 Opinion of Kramer Levin Naftalis &
Frankel LLP regarding legality of
securities being registered (including
consent).
23.1 Consent of Independent Auditors.
23.2 Consent of Kramer Levin Naftalis & Frankel LLP
(contained in the Opinion filed as Exhibit 5 hereto).
Exhibit 4.3
TWINLAB CORPORATION
NON-EMPLOYEE DIRECTOR STOCK OPTION GRANT AGREEMENT
THIS AGREEMENT, made as of this ____ day of ____, ______
between TWINLAB CORPORATION (the "Company") and ______________ (the
"Participant").
WHEREAS, the Company has adopted and maintains the Twinlab
Corporation 1999 Stock Incentive Plan for Outside Directors (the "Plan") to
promote the interests of the Company and its shareholders by providing the
Company's non-employee directors with appropriate incentives and rewards to
encourage them to take a long-term outlook when formulating policy applicable to
the Company, to provide incentives for qualified individuals to become members
of the Board of Directors, to encourage such individuals to remain on the Board
of Directors and to provide them with an equity interest in the Company;
WHEREAS, the Plan provides that the Compensation Committee of
the Board of Directors (the "Committee") shall administer the Plan;
WHEREAS, the Plan provides that as of the date following each
annual meeting of the Company each Participant shall be granted options to
purchase 2,500 shares of the common stock of the Company, par value $1.00 per
share ("Stock"); and
WHEREAS, the Company's annual meeting for 1999 was held on
__________________________;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants hereinafter set forth, the parties hereto hereby agree as
follows.
1. Grant of Option. Pursuant to, and subject to, the terms and
conditions set forth herein and in the Plan, the Committee hereby grants to the
Participant an option (the "Option") to purchase 2,500 shares of Stock. The
Option does not constitute an "incentive stock option" within the meaning of
Section 422 of the Internal Revenue Code of 1986.
2. Grant Date. The Grant Date of the Option is _________,
_____.
3. Incorporation of Plan. All terms, conditions and
restrictions of the Plan are incorporated herein and made part hereof as if
stated herein. If there is any conflict between the terms and conditions of the
Plan or this Agreement, the terms and conditions of the Plan, as interpreted by
the Committee, shall govern. Except as otherwise provided herein, all
capitalized terms used herein shall have the meaning given to such terms in the
Plan.
<PAGE>
4. Vesting Date. THE OPTION SHALL FIRST BECOME EXERCISABLE
WITH RESPECT TO THE FOLLOWING NUMBER OF SHARES ON THE FOLLOWING
DATES:
==========================================================================
Number of Shares First Date on Which Such Number of
Shares Becomes Exercisable
==========================================================================
833
- --------------------------------------------------------------------------
833
- --------------------------------------------------------------------------
834
==========================================================================
5. Exercise Price. The exercise price-per share of each share
with respect to which the Option is granted is $______, the Fair Market Value of
Stock on the Grant Date.
6. Expiration Date; Effect of Termination of Membership on the
Board of Directors.
(a) Subject to the provisions of the Plan and this Agreement,
the Option granted hereby shall expire and terminate on the tenth anniversary of
the Grant Date.
(b) In the event that a Participant's membership on the Board
of Directors terminates for any reason other than the Participant's death,
disability or the termination for Cause of the Participant's membership on the
Board of Directors, (i) the Option, to the extent that it was exercisable at the
time of such termination, shall remain exercisable until the expiration of 90
days after such termination, on which date it shall expire, and (ii) the Option,
to the extent that it was not exercisable at the time of such termination, shall
expire at the close of business on the date of such termination; provided,
however, that the Option shall not be exercisable after the expiration of its
term.
(c) In the event that (A) a Participant's membership on the
Board of Directors terminates because of the Participant's disability or death
or (B) a Participant dies during the 90-day period under Section 6(b), (i) the
Option, to the extent that it was exercisable at the time of such termination or
death, shall remain exercisable until the expiration of one year after such
termination or death, on which date it shall expire, and (ii) the Option, to the
extent that it was not exercisable at the time of such termination or death,
shall expire at the close of business on the date of such termination or death;
provided, however, that the Option shall not be exercisable after the expiration
of its term.
(d) In the event that a Participant's membership on the Board
of Directors is terminated for Cause, the Option shall expire at the
commencement of business on the date of such termination. In the event the
Participant has been permitted to exercise the Option, in whole or in part, on
or after the date the Participant's membership on the Board of Directors is
deemed to have been terminated for Cause, such exercise shall be deemed to have
been
2
<PAGE>
void ab initio and, upon demand by the Company, the Participant shall return to
the Company any shares purchased upon such exercise, and the Company shall
return to the Participant the exercise price paid by the Participant.
(e) In the event that a Participant's membership on the Board
of Directors is terminated for Cause within one year after the Option is
exercised, in whole or in part, all gain (as such term is defined in Section 8
of the Plan) realized by the Participant from such exercise shall be paid to the
Company by the Participant upon notice from the Company to the Participant.
7. Method of Exercise.
(a) The Option shall be exercisable in whole or in part; provided,
however, that no partial exercise of the Option shall be for an aggregate
exercise price of less than $1,000. The partial exercise of the Option shall not
cause the expiration, termination or cancellation of the remaining portion
thereof. Upon the partial exercise of the Option, this Agreement shall be
returned to the Participant together with the delivery of the certificates
described in Section 7(d).
(b) The Option shall be exercised by delivering notice to the
Company's principal office, to the attention of its Secretary, no less than one
business day in advance of the effective date of the proposed exercise. Such
notice shall be accompanied by this Agreement, shall specify the number of
shares of Stock with respect to which the Option is being exercised and the
effective date of the proposed exercise and shall be signed by the Participant.
The Participant may withdraw such notice at any time prior to the close of
business on the business day immediately preceding the effective date of the
proposed exercise, in which case this Agreement shall be returned to him.
(c) Payment for shares of Stock purchased upon the exercise of the
Option shall be made on the effective date of such exercise either (A) in cash,
by certified check, bank cashier's check or wire transfer or (B) subject to the
approval of the Board of Directors, in shares of Stock owned by the Participant
and valued at their Fair Market Value on the effective date of such exercise, or
partly in shares of Stock with the balance in cash, by certified check, bank
cashier's check or wire transfer. Any payment in shares of Stock shall be
effected by the delivery of such shares to the Secretary of the Company, duly
endorsed in blank or accompanied by stock powers duly executed in blank,
together with any other documents and evidences as the Secretary of the Company
shall require from time to time.
(d) Certificates for shares of Stock purchased upon the exercise of
the Option shall be issued in the name of the Participant, his beneficiary or
such other party to whom the Participant transferred the Option pursuant to
Section 9, below, as the case may be, and delivered to the Participant, his
beneficiary or such other party, as the case may be, as soon as practicable
following the effective date of such exercise.
3
<PAGE>
8. Securities Matters.
(b) The Company shall be under no obligation to (i) effect the
registration pursuant to the Securities Act of 1933 of any interests in the Plan
or any shares of Stock to be issued thereunder or to effect similar compliance
under any state laws; or (ii) to cause to be issued or delivered any
certificates evidencing shares of Stock pursuant hereto unless and until the
Company is advised by its counsel that the issuance and delivery of such
certificates is in compliance with all applicable laws, regulations of
governmental authority and the requirements of any securities exchange on which
shares of Stock are traded. The Committee may require, as a condition of the
issuance and delivery of certificates evidencing shares of Stock pursuant to the
terms hereof, that the recipient of such shares make such covenants, agreements
and representations, and that such certificates bear such legends, as the
Committee, in its sole discretion, deems necessary or desirable. The Participant
specifically understands and agrees that the shares of Stock, if and when issued
upon exercise of the Option, may be "restricted securities," as that term is
defined in Rule 144 under the Securities Act of 1933 and, accordingly, the
Participant may be required to hold the shares indefinitely unless they are
registered under such Act or an exemption from such registration is available.
(b) The exercise of the Option shall be effective only at such
time as counsel to the Company shall have determined that the issuance and
delivery of shares of Stock pursuant to such exercise is in compliance with all
applicable laws, regulations of governmental authority and the requirements of
any securities exchange on which shares of Stock are traded. The Committee may,
in its sole discretion, defer the effectiveness of any exercise of the Option in
order to allow the issuance of shares of Stock pursuant thereto to be made
pursuant to registration or an exemption from registration or other methods for
compliance available under federal or state securities laws. The Committee shall
inform the Participant in writing of its decision to defer the effectiveness of
the exercise of the Option. During the period that the effectiveness of the
exercise of the Option has been deferred, the Participant may, by written
notice, withdraw such exercise and obtain the refund of any amount paid with
respect thereto.
4
<PAGE>
9. Transferability. The Option shall be exercisable only by
the Participant and shall not be assignable or transferable otherwise than (i)
to the Participant's spouse, children or grandchildren ("Immediate Family
Members"), (ii) to a trust or trusts for the exclusive benefit of such Immediate
Family Members, (iii) to other parties as the Committee in its absolute
discretion may from time to time approve, or (iv) by will or the laws of descent
and distribution. Following any such transfer, the Option shall continue to be
subject to the same terms and conditions as were applicable immediately prior to
the transfer. If the Participant is incapacitated, the Option may be exercised
on the Participant's behalf by the Participant's guardian or legal
representative, provided, however, that such an exercise shall not be effective
unless and until the Committee has received evidence satisfactory to it as to
the authority of such guardian or legal representative.
10. Notices. Any notice that either party hereto or the
Committee may be required or permitted to give to the other with respect to the
Plan or this Agreement shall be in writing, and may be delivered personally or
by mail, postage prepaid, addressed as follows:
(a) if to the Company:
Twinlab Corporation
150 Motor Parkway
Hauppauge, New York 11788
Attn: [ ]
(b) if to the Committee:
Compensation Committee of the Board of Directors
Twinlab Corporation
150 Motor Parkway
Hauppauge, New York 11788
Attn: [Secretary]
(c) if to the Participant:
[Participant]
[Home address]
or to such other address as the person to whom the notice is directed shall have
designated in writing to others.
11. Delays or Omissions. No delay or omission to exercise any
right, power or remedy accruing to either party hereto upon any breach or
default of either party under this Agreement, shall impair any such right, power
or remedy of such party, nor shall it be construed to be a waiver of any such
breach or default, or an acquiescence therein, or of or in any similar breach or
default thereafter occurring,
5
<PAGE>
nor shall any waiver of any single breach or default be deemed a waiver of any
other breach or default theretofore or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character on the part of either party of any
breach or default under this Agreement, or any waiver on the part of either
party of any provisions or conditions of this Agreement, must be in a writing
signed by such party and shall be effective only to the extent specifically set
forth in such writing.
12. Integration. This Agreement, and the other documents
referred to herein or delivered pursuant hereto which form a part hereof,
contain the entire understanding of the parties with respect to its subject
matter. There are no restrictions, agreements, promises, representations,
warranties, covenants or undertakings with respect to the subject matter hereof
other than those expressly set forth herein. This Agreement, including, without
limitation, the Plan, supersedes all prior agreements and understandings between
the parties with respect to its subject matter.
13. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same instrument.
14. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York,
without regard to the provisions governing conflict of laws.
15. Participant Acknowledgment. The Participant hereby
acknowledges receipt of a copy of the Plan. The Participant hereby acknowledges
that all decisions, determinations and interpretations of the Committee in
respect of the Plan, this Agreement and the Option shall be final and
conclusive.
IN WITNESS WHEREOF, the Company has caused this Agreement to
be duly executed by its duly authorized officer, and the Participant has
hereunto signed this Agreement on his own behalf, thereby representing that he
has carefully read and understands this Agreement and the Plan as of the day and
year first written above.
TWINLAB CORPORATION
By: __________________________________________
______________________________________________
[Participant]
6
Exhibit 4.4
TWINLAB CORPORATION
NON-EMPLOYEE DIRECTOR RESTRICTED STOCK GRANT AGREEMENT
This Agreement, dated this ____ day of , between TWINLAB
CORPORATION (the "Company") and _______________ (the "Participant").
WHEREAS, the Company has adopted and maintains the Twinlab
Corporation 1999 Stock Incentive Plan for Outside Directors (the "Plan") to
promote the interests of the Company and its shareholders by providing the
Company's non-employee directors with appropriate incentives and rewards to
encourage them to take a long-term outlook when formulating policy applicable to
the Company, to provide incentives for qualified individuals to become members
of the Board of Directors, to encourage such individuals to remain on the Board
of Directors and to provide them with an equity interest in the Company;
WHEREAS, the Plan provides that the Compensation Committee of
the Board of Directors (the "Committee") shall administer the Plan;
WHEREAS, the Plan provides that as of the date following each
annual meeting of the Company each Participant shall be granted an amount of
restricted shares of the common stock of the Company, par value $1.00 per share
("Restricted Stock") with an aggregate value, based on the Fair Market Value for
the five trading days preceding the Grant Date, as close to $5,000 as possible;
and
WHEREAS, the Company's annual meeting for _____ was held on
____________;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth, the parties hereto hereby agree as follows:
1. Grant of Restricted Stock. Pursuant to, and subject to, the
restrictions, terms and conditions set forth herein and in the Plan, the Company
hereby grants to the Participant 592 shares of Restricted Stock (the "Grant").
2. Grant Date. The Grant Date of the Grant is _______________.
3. Incorporation of Plan. All terms, conditions and restrictions
of the Plan are incorporated herein and made part hereof as if stated herein. If
there is any conflict between the terms and conditions of the Plan or this
Agreement, the terms and conditions of the Plan, as interpreted by the
Committee, shall govern. Except as otherwise provided herein, all capitalized
terms used herein shall have the meaning given to such terms in the Plan.
<PAGE>
4. Vesting Date. THE GRANT SHALL VEST AND BECOME FREE OF
RESTRICTIONS WITH RESPECT TO THE FOLLOWING NUMBER OF SHARES ON
THE FOLLOWING DATES:
============================================================================
Number of Shares Date on Which Such Number
of Shares Vests And Becomes
Free of Restrictions
============================================================================
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
============================================================================
5. Restrictions on Transferability. Until a share of Restricted
Stock vests, the Participant shall not transfer the Participant's rights to such
share of Restricted Stock or to any rights related thereto. Until a share of
Restricted Stock vests, no attempt to transfer such shares or any rights related
thereto, whether by transfer, pledge, hypothecation or otherwise and whether
voluntary or involuntary, by operation of law or otherwise, shall vest the
transferee with any interest or right in or with respect to such share of
Restricted Stock or such related rights, but immediately upon any such attempt,
the portion of the Grant represented by such share of Restricted Stock and any
related rights shall be forfeited by the Participant, and the transfer shall be
of no force or effect.
6. Effect of Termination of Membership on the Board of
Directors.
(a) In the event that the Participant's membership on the Board
of Directors terminates for any reason, all shares of Restricted Stock that have
not vested as of the date of such termination shall be forfeited.
(b) In the event that a Participant's membership on the Board of
Directors is terminated for Cause within one year after any portion of the Grant
vests, all gain (as such term is defined in Section 8 of the Plan) realized by
the Participant from such vesting shall be paid to the Company by the
Participant upon notice from the Company to the Participant.
7. Issuance of Certificates.
(a) Reasonably promptly after the Grant Date for any shares of
Restricted Stock that have not theretofore been forfeited, provided that the
Company has received a stock power endorsed by the Participant in blank with
respect to such shares of Restricted Stock, the Company shall issue stock
certificates, registered in the name of the Participant, evidencing such shares
of Restricted Stock. Each such certificate shall bear the following legend:
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"The transferability of this certificate and the shares
of stock represented hereby are subject to the restrictions,
terms and conditions (including forfeiture provisions and
restrictions against transfer) contained in the Twinlab
Corporation 1999 Stock Incentive Plan for Outside Directors and
an Agreement entered into between the registered owner of such
shares and Twinlab Corporation. A copy of the Plan and Agreement
is on file in the office of the Secretary of Twinlab
Corporation, 150 Motor Parkway, Hauppauge, New York 11788."
Such legend shall not be removed from the certificates evidencing such shares of
Restricted Stock until such shares vest.
(b) Each certificate issued pursuant to Section 7(a) hereof,
together with the stock powers relating to such shares of Restricted Stock,
shall be deposited by the Company with a custodian designated by the Company.
The Company may designate itself as custodian hereunder. The Company shall cause
such custodian to issue to the Participant a receipt evidencing the certificates
held by it which are registered in the name of the Participant.
(c) Reasonably promptly after any such shares of Restricted
Stock vest pursuant to Section 4 hereof, the Company shall cause to be issued
certificates evidencing such shares of Restricted Stock, free of the legend
provided in Section 7(a) hereof and shall cause such certificates to be
delivered to the Participant (or such Participant's legal representative,
beneficiary or heir), together with any other property of the Participant held
by the custodian pursuant to Section 10 hereof.
(d) The Participant shall not be deemed for any purpose to be,
or have rights as, a shareholder of the Company by virtue of the Grant, except
to the extent a stock certificate is issued therefor pursuant to Section 7(a)
hereof, and then only from the date such certificate is issued.
8. Securities Matters. Notwithstanding anything herein to the
contrary, the Company shall be under no obligation (i) to effect the
registration pursuant to the Securities Act of 1933 of any shares of Restricted
Stock to be issued hereunder or to effect similar compliance under any state
laws; or (ii) to cause to be issued or delivered any certificates evidencing
shares of Restricted Stock awarded by this Agreement unless and until the
Company is advised by its counsel that the issuance and delivery of such
certificates is in compliance with all applicable laws, regulations of
governmental authority and the requirements of any securities exchange on which
shares of Twinlab Stock are traded. The Committee may require, as a condition of
the issuance and delivery of certificates evidencing shares of Restricted Stock
pursuant to the terms hereof, that the recipient of such shares make appropriate
covenants, agreements and representations, and that such certificates bear
appropriate legends.
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9. Unless the Committee otherwise determines, any securities and
other property, including cash dividends, received by a Participant with respect
to a share of Restricted Stock as a result of any dividend, stock split,
recapitalization, merger, consolidation, combination, exchange of shares or
otherwise and for which the Grant Date occurs prior to such event but which has
not vested as of the date of such event will not vest until such share of
Restricted Stock vests, and shall be promptly deposited with the custodian
designated by the Company to be held in custody in accordance with Section 7(b)
hereof as though such securities and other property were part of such share.
10. Notices. Any notice that either party hereto or the
Committee may be required or permitted to give to the other with respect to the
Plan or this Agreement shall be in writing, and may be delivered personally or
by mail, postage prepaid, addressed as follows:
(a) if to the Company:
Twinlab Corporation
150 Motor Parkway
Hauppauge, New York 11788
Attn: [ ]
(b) if to the Committee:
Compensation Committee of the Board of Directors
Twinlab Corporation
150 Motor Parkway
Hauppauge, New York 11788
Attn: [Secretary]
(c) if to the Participant:
[Participant]
[Home address]
or to such other address as the person to whom the notice is directed shall have
designated in writing to others.
11. Delays or Omissions. No delay or omission to exercise any
right, power or remedy accruing to either party hereto upon any breach or
default of either party under this Agreement, shall impair any such right, power
or remedy of such party, nor shall it be construed to be a waiver of any such
breach or default, or an acquiescence therein, or of or in any similar breach or
default thereafter occurring, nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of either party of any breach or default
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<PAGE>
under this Agreement, or any waiver on the part of either party of any
provisions or conditions of this Agreement, must be in a writing signed by such
party and shall be effective only to the extent specifically set forth in such
writing.
12. Integration. This Agreement, and the other documents
referred to herein or delivered pursuant hereto which form a part hereof,
contain the entire understanding of the parties with respect to its subject
matter. There are no restrictions, agreements, promises, representations,
warranties, covenants or undertakings with respect to the subject matter hereof
other than those expressly set forth herein. This Agreement, including, without
limitation, the Plan, supersedes all prior agreements and understandings between
the parties with respect to its subject matter.
13. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
14. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York,
without regard to the provisions governing conflict of laws.
15. Participant Acknowledgment. The Participant hereby
acknowledges receipt of a copy of the Plan. The Participant hereby acknowledges
that all decisions, determinations and interpretations of the Committee in
respect of the Plan, this Agreement and the Grant shall be final and conclusive.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer, and the Participant has hereunto signed
this Agreement on his own behalf, thereby representing that he has carefully
read and understands this Agreement and the Plan as of the day and year first
above written.
TWINLAB CORPORATION
By:_______________________________________
__________________________________________
[Participant]
5
EXHIBIT 5
[LETTERHEAD OF KRAMER LEVIN NAFTALIS & FRANKEL LLP]
FACSIMILE
(212) 715-8000
------
WRITER'S DIRECT NUMBER
(212) 715-9100
September 16, 1999
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 65,000 shares (the "Shares") of common stock, par value $1.00 per
share (the "Common Stock"), to be issued pursuant to the Registrant's 1999 Stock
Incentive Plan for Outside Directors (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.
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 LLP
---------------------------------------
Kramer Levin Naftalis & Frankel LLP
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Twinlab Corporation on Form S-8 of our report dated March 16, 1999,
appearing in the Annual Report on Form 10-K of Twinlab Corporation for the year
ended December 31, 1998.
DELOITTE & TOUCHE LLP
Jericho, New York
September 10, 1999
