-----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, IMiSj1KxdhjKnY+iuFyx1D1Xrmdss0b3XgHGc4WSKCR4LS6oZlE8tLYJ/flJBepX kyNQr0MSLjdOndX0/CpXAw== 0000922423-99-001543.txt : 19991231 0000922423-99-001543.hdr.sgml : 19991231 ACCESSION NUMBER: 0000922423-99-001543 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19991230 EFFECTIVENESS DATE: 19991230 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: 333-93939 FILM NUMBER: 99784255 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 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------- TWINLAB CORPORATION (Exact name of registrant as specified in its charter) Delaware 11-3317986 -------- ---------- (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification Number) 150 Motor Parkway, Suite 210 Hauppauge, New York 11788 (Address of Principal Executive Offices) --------------- TWINLAB CORPORATION 1998 STOCK INCENTIVE PLAN (Full Title of the Plan) Philip M. Kazin, Esq. Chief Legal Officer and General Counsel Twinlab Corporation 150 Motor Parkway, Suite 210 Hauppauge, New York 11788 (Name and Address of Agent for Service) (516) 467-3140 (Telephone Number, Including Area Code, of Agent for Service) Copies to: Howard A. Sobel, Esq. Kramer Levin Naftalis & Frankel LLP 919 Third Avenue New York, New York 10022 (212) 715-9100 CALCULATION OF REGISTRATION FEE
- --------------------------- ------------------ --------------------------- ----------------------------- ------------------- 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 - --------------------------- ------------------ --------------------------- ----------------------------- ------------------- Common Stock (par value 327,050 shares $7.984(1) $2,611,167 $689.34 $1.00 per share) - --------------------------- ------------------ --------------------------- ----------------------------- -------------------
(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 December 29, 1999, which is within five (5) business days prior to the date of this Registration Statement. EXPLANATORY NOTE This Registration Statement on Form S-8 is being filed for the purpose of registering an additional 327,050 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 1998 Stock Incentive Plan, are incorporated by reference. -2- 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- 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- 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 LLP regarding legality of securities being registered (including consent). 23.1 Consent of Independent Auditors. 23.2 Consent of Kramer Levin Naftalis & Frankel LLP (see Exhibit Number 5 above). -5- 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- 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 29th day of December, 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, December 29, 1999 Ross Blechman Chief Executive Officer and President /s/ Neil Blechman - --------------------------- Executive Vice President, December 29, 1999 Neil Blechman Secretary and Director /s/ Brian Blechman - --------------------------- Executive Vice President, December 29, 1999 Brian Blechman Treasurer and Director /s/ Steve Blechman - --------------------------- Executive Vice President December 29, 1999 Steve Blechman and Director /s/ Dean Blechman - --------------------------- Executive Vice President December 29, 1999 Dean Blechman and Director /s/ Stephen L. Welling - --------------------------- President, Health and December 29, 1999 Stephen L. Welling Natural Food Store Division, and Director /s/ Jonathan D. Sokoloff - --------------------------- Director December 29, 1999 Jonathan D. Sokoloff /s/ John G. Danhakl - --------------------------- Director December 29, 1999 John G. Danhakl /s/ William V. Westerfield - --------------------------- Director December 28, 1999 William V. Westerfield /s/ Robert S. Apatoff - --------------------------- Director December 27, 1999 Robert S. Apatoff -7- 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 LLP regarding legality of securities being registered (including consent). 23.1 Consent of Independent Auditors. 23.2 Consent of Kramer Levin Naftalis & Frankel LLP (see Exhibit Number 5 above). -8- EX-5 2 OPINION OF KRAMER LEVIN NAFTALIS & FRANKEL LLP EXHIBIT 5 KRAMER LEVIN NAFTALIS & FRANKEL LLP 9 1 9 T H I R D A V E N U E NEW YORK, N.Y. 10022 - 3852 (212) 715 - 9100 FAX (212) 715-8000 ------ WRITER'S DIRECT NUMBER (212) 715-9100 December 30, 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 327,050 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 December, 1999. 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- EX-23.1 3 INDEPENDENT AUDITORS' CONSENT Exhibit 23 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 December 28, 1999. -----END PRIVACY-ENHANCED MESSAGE-----