-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, PNXzYSQZuuhSt93tzUrhRtHLfBKvHpNyw6rH1VQ3WdlVn76DUgUiZ+qJ9fvu3ciE ILQxnzWN9nAyc3pEozXWIQ== 0000922423-99-001137.txt : 19990920 0000922423-99-001137.hdr.sgml : 19990920 ACCESSION NUMBER: 0000922423-99-001137 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19990917 EFFECTIVENESS DATE: 19990917 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TWINLAB CORP CENTRAL INDEX KEY: 0001015868 STANDARD INDUSTRIAL CLASSIFICATION: MEDICINAL CHEMICALS & BOTANICAL PRODUCTS [2833] IRS NUMBER: 113317986 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-87355 FILM NUMBER: 99713536 BUSINESS ADDRESS: STREET 1: 150 MOTOR PARKWAY CITY: HAUPPAUGE STATE: NY ZIP: 11778 BUSINESS PHONE: 5164673140 MAIL ADDRESS: STREET 1: 150 MOTOR PARKWAY CITY: HAUPPAUGE STATE: NY ZIP: 11778 FORMER COMPANY: FORMER CONFORMED NAME: TLG LABORATORIES HOLDING CORP DATE OF NAME CHANGE: 19960603 S-8 1 REGISTRATION STATEMENT 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
=================================================================================================================================== 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 - ----------------------------------------------------------------------------------------------------------------------------------- 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 ===================================================================================================================================
(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. 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- 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- 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- 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. 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 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). EX-4.3 2 FORM OF STOCK OPTION AGREEMENT 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. 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 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 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 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 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 EX-4.4 3 FORM OF RESTRICTED STOCK GRANT AGREEMENT 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. 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: 2 "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. 3 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 4 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 EX-5 4 OPINION OF LEGALITY 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 EX-23.1 5 INDEPENDENT AUDITORS' CONSENT 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 -----END PRIVACY-ENHANCED MESSAGE-----