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 (I.R.S. Employer
of 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>
-------------------------------------------------------------------------------------------------------------------------
Title of Securities to be Amount to be Proposed Maximum Offering Proposed Maximum Aggregate Amount of
Registered Registered Price Per Share(1) Offering Price Registration Fee
-------------------------------------------------------------------------------------------------------------------------
<S> <C>
Common Stock (par value 315,662 shares $8.09375 $2,554,889 $674.49
$1.00 per share)
-------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated, solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, as amended.
The Proposed Maximum Offering Price Per Share is based on the average
of the high and low prices reported by the Nasdaq National Market on
Friday, January 14, 2000, which is within five (5) business days prior
to the date of this Registration Statement.
<PAGE>
EXPLANATORY NOTE
This Registration Statement on Form S-8 is being filed for the purpose
of registering an additional 315,662 shares of the Registrant's Common
Stock, par value $1.00 per share, to be issued pursuant to the
Registrant's 1998 Stock Incentive Plan. The contents of the
Registrant's Registration Statement on Form S-8 (File No. 333-65933),
relating to the Registrant's 1998 Stock Incentive Plan, are
incorporated by reference.
2
<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
the1934 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 for the fiscal quarter
ended September 30, 1999, filed November 15, 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 March 31, 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 June 30, 1998, filed March 30, 1999 pursuant to Section 13(a) of
the 1934 Act;
(8) 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;
(9) 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
(10) 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.
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.
3
<PAGE>
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
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.
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
<PAGE>
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).
5
<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.
6
<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 14th day of
January, 2000.
TWINLAB CORPORATION
By: /s/ Ross Blechman
------------------------------------
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, January 14, 2000
- ----------------- Chief Executive Officer
Ross Blechman and President
/s/ Neil Blechman Executive Vice President, January 14, 2000
- ----------------- Secretary and Director
Neil Blechman
/s/ Brian Blechman Executive Vice President, January 14, 2000
- ------------------ Treasurer and Director
Brian Blechman
/s/ Steve Blechman Executive Vice President January 14, 2000
- ------------------ and Director
Steve Blechman
/s/ Dean Blechman Executive Vice President January 14, 2000
- ----------------- and Director
Dean Blechman
/s/ Stephen L. Welling President, Health and January 14, 2000
- ---------------------- Natural Food Store
Stephen L. Welling Division, and Director
/s/ Jonathan D. Sokoloff Director January 14, 2000
- ------------------------
Jonathan D. Sokoloff
/s/ John G. Danhakl Director January 14, 2000
- -------------------
John G. Danhakl
/s/ William V. Westerfield Director January 14, 2000
- --------------------------
William V. Westerfield
/s/ Robert S. Apatoff Director January 14, 2000
- ---------------------
Robert S. Apatoff
7
<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).
8
Exhibit 23.2
KRAMER LEVIN NAFTALIS & FRANKEL LLP
919 THIRD AVENUE
NEW YORK, N.Y. 10022 - 3852
47, Avenue Hoche
75008 Paris
TEL (212) 715-9100 France
FAX (212) 715-8000
January 18, 2000
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
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 315,662 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"). The Shares represent additional shares of Common
Stock which were authorized to be issued under the Plan by the Board of
Directors of the Registrant pursuant to the Plan in January, 2000.
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. In rendering this
opinion, we have (a) assumed (i) the genuineness of all signatures on all
documents examined by us, (ii) the authenticity of all documents submitted to us
as originals, and (iii) the conformity to original documents of all documents
submitted to us as photostatic or conformed copies and the authenticity of the
originals of such copies; and (b) relied on (i) certificates of public officials
and (ii) as to matters of fact, statements and certificates of 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
9
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
January 13, 2000.
10
