As filed with the Securities and Exchange Commission on April 11, 1994
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TPI ENTERPRISES, INC.
(Exact name of registrant as specified in its charter)
NEW JERSEY 22-1899681
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
PHILLIPS POINT, EAST TOWER, SUITE 909, 777 SOUTH FLAGLER DRIVE
WEST PALM BEACH, FLORIDA 33401
(Address of Principal Executive Offices)
TPI ENTERPRISES, INC. 1992 STOCK OPTION AND INCENTIVE PLAN
TPI ENTERPRISES, INC. NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
(Full title of the plan)
ROBERT A. KENNEDY
EXECUTIVE VICE PRESIDENT
TPI ENTERPRISES, INC.
PHILLIPS POINT
EAST TOWER, SUITE 909
777 SOUTH FLAGLER DRIVE
WEST PALM BEACH, FLORIDA 33401
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(407) 835-8888
(Telephone number, including area code, of agent for service)
Please send copies of communications to
RONALD C. BARUSCH, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM
1440 NEW YORK AVENUE, N.W.
WASHINGTON, D.C. 20005
(202) 371-7000
CALCULATION OF REGISTRATION FEE
Title of Amount to Proposed Proposed Amount
securities be maximum maximum of
to be registered offering aggregate registration
registered price per offering fee
share* price*
Common 1,500,000 $6.94 $10,410,000 $3,590.00
Stock, par shares
value $.01
per share
* Estimated in accordance with Rule 457(c) and (h) solely for
purposes of calculating the registration fee
REOFFER PROSPECTUS
TPI ENTERPRISES, INC.
PHILLIPS POINT
EAST TOWER, SUITE 909
777 SOUTH FLAGLER DRIVE
WEST PALM BEACH, FLORIDA 33401
(407) 835-8888
COMMON STOCK (PAR VALUE $.01 PER SHARE)
1,350,000 SHARES OF COMMON STOCK UNDER 1992 STOCK OPTION AND INCENTIVE PLAN
150,000 SHARES OF COMMON STOCK UNDER NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
This Prospectus is being used in connection with the
offering from time to time by officers and other key executive
employees (the "Registered Shareholders") of TPI Enterprises,
Inc., a New Jersey corporation, and/or its subsidiaries (the
"Company"), who may be deemed "affiliates" of the Company as
defined in Section 405 of the General Rules and Regulations under
the Securities Act of 1933, as amended (the "Securities Act"), of
shares of common stock, par value $.0l per share, of the Company
(the "Common Stock"), which may be acquired by them pursuant to
the Company's 1992 Stock Option and Incentive Plan (the "1992
Plan") or the Company's Non-Employee Directors Stock Option Plan
(the "Director Plan") (collectively, the "Plans").
It is anticipated that the Registered Shareholders will
offer shares of Common Stock for sale at prevailing prices in the
over-the-counter market on the date of sale, and the commissions
payable will be the regular commissions of brokers for effecting
such sales. However, any securities covered by this Prospectus
which qualify for sale pursuant to Rule 144 under the Securities
Act may be sold under Rule 144 rather than pursuant to this
Prospectus. All expenses of registration incurred in connection
with this offering are being borne by the Company, but all
brokerage commissions and other expenses incurred by individual
Registered Shareholders will be borne by each such Registered
Shareholder. The Company will not receive any of the proceeds
from such sales.
The Registered Shareholders and any broker executing
selling orders on behalf of the Registered Shareholders may be
deemed to be "underwriters" within the meaning of the Securities
Act, in which event commissions received by any such broker may be
deemed to be underwriting commissions under the Securities Act.
The Common Stock is traded in the over-the-counter
market. On April 8, 1994, the closing price of the Common Stock
as reported by the NASDAQ National Market System was $7.25 per
share.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION, NOR HAS THE
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is April 11, 1994
No person has been authorized to give any information or to
make any representations not contained in this Prospectus in
connection with the offering described herein and, if given or
made, such information or representations must not be relied upon
as having been authorized by the Company. This Prospectus does
not constitute an offer to sell or a solicitation of an offer to
buy, nor shall there be any offer to sell, solicitation of an
offer to buy or sale of these securities by any person in any
jurisdiction in which it is unlawful for such person to make such
offer, solicitation or sale. Neither the delivery of this
Prospectus nor any sale made hereunder shall under any
circumstances create any implication that there has been no change
in the affairs of the Company since the date hereof.
TABLE OF CONTENTS
AVAILABLE INFORMATION
INCORPORATION OF CERTAIN DOCUMENTS
BY REFERENCE
THE COMPANY
REGISTERED SHAREHOLDERS
STATEMENT ON INDEMNIFICATION
AVAILABLE INFORMATION
The Company is subject to the informational
requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and in accordance therewith
files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission").
Such reports, proxy statements and other information filed
with the Commission can be inspected and copied at the
public reference facilities maintained by the Commission at
Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549
and at the following regional offices of the Commission:
Room 3190, Kluczynski Federal Building, 230 South Dearborn
Street, Chicago, Illinois 60604 and 75 Park Place, 14th
floor, New York, New York 10007. Copies of such material
can be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549
at prescribed rates.
In the event that an appendix or other supplement
is used by the Company to update information in this
Prospectus, the Company will provide persons who have
already received copies of this Prospectus with a copy of
any such current appendix or supplement. Upon request, the
Company will also furnish an additional Prospectus, as
currently supplemented, to anyone who has misplaced or
discarded his copy.
The Company has filed Registration Statements with
the Commission under the Securities Act with respect to the
Common Stock to which this Prospectus relates. This
Prospectus does not contain all the information set forth in
the Registration Statement, certain portions of which have
been omitted pursuant to the rules and regulations of the
Commission. The information so omitted may be obtained at
the Commission's principal offices in Washington, D.C. upon
payment of the fees prescribed by the Commission.
The Company maintains its principal executive offices at
Phillips Point, East Tower, Suite 909, 777 South Flagler
Drive, West Palm Peach, Florida 33401, and its telephone
number is (407) 835-8888.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the
Company with the Commission pursuant to the Exchange Act
(File No. 0-7961) are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for
the fiscal year ended December 26, 1993;
2. As to the Common Stock, which is registered
under Section 12 of the Exchange Act, the description of
such class of securities as given in Exhibit 3(b) to the
Company's Annual Report on Form 10-K for the year ended
December 31, 1986 setting forth Article Third of the
Company's Restated Certificate of Incorporation; and
3. All reports and other documents filed by the
Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act after the date hereof and prior to the filing
of a post-effective amendment indicating that all securities
offered hereby have been sold or deregistering all
securities then remaining unsold as of the date of filing of
such documents.
The Company will provide without charge to each
person to whom a copy of this Prospectus has been delivered,
upon the written or oral request of such person, the
Company's Annual Report to Shareholders for the Company's
last fiscal year and any or all of the documents referred to
above which have been or may be incorporated by reference in
this Prospectus, other than exhibits to such documents
(unless such exhibits are specifically incorporated by
reference therein). Requests should be directed to:
Secretary, TPI Enterprises, Inc., Phillips Point, East
Tower, Suite 909, 777 South Flagler Drive, West Palm Beach,
Florida 33401 (telephone number (407) 835-8888).
Any statements contained in a document
incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for
purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document
which also is or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any statement
so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this
Prospectus.
THE COMPANY
TPI Enterprises, Inc., a New Jersey corporation,
has executive offices located at Phillips Point, East Tower,
Suite 909, 777 South Flagler Drive, West Palm Beach, Florida
33401, telephone number (407) 835-8888.
REGISTERED SHAREHOLDERS
This Prospectus relates to shares of Common Stock
which may be acquired by certain officers, directors,
employees and consultants of the Company and other persons
who may be deemed affiliates of the Company pursuant to the
Plans (collectively, the "Registered Shareholders"). The
address of each Registered Shareholder is c/o TPI
Enterprises, Inc., Phillips Point, East Tower, Suite 909,
777 South Flagler Drive, West Palm Beach, Florida 33401.
The following table sets forth the name and
position or positions with the Company and/or its
subsidiaries of each Registered Shareholder and (a) the
number of shares of Common Stock which each Registered
Shareholder beneficially owned as of April 11, 1994
(including shares obtainable under currently exercisable
options previously granted under the Plans which are
exercisable within sixty (60) days of April 11, 1994); (b)
the number of shares of Common Stock which each Registered
Shareholder has acquired pursuant to the Plans or may
acquire pursuant to the exercise of options granted to such
Registered Shareholder under the Plans, some or all of which
shares may be sold from time to time pursuant to this
Prospectus; and (c) the number of shares of Common Stock and
the percentage, if 1% or more, of the total class of Common
Stock outstanding to be beneficially owned by each
Registered Shareholder following this offering, assuming the
exercise of all options (exercisable within sixty days of
the date hereof) heretofore granted to such Registered
Shareholder and not cancelled and the sale of all shares
acquired upon exercise of such options by such Registered
Shareholder pursuant to this offering.
This table reflects all Registered Shareholders
who are eligible to resell and the amounts of securities
available to be resold after exercise of the options,
whether or not they have a present intent to do so. As of
April 8, 1994 no Registered Shareholder has exercised any
stock options under the Plans.
Registered Shareholder Shares Shares Amount/Percentage
and Position with Beneficially Covered Shares
Beneficial the Company or Owned as of by this Owned After
Its Subsidiaries April 11, 1994 Prospectus This Offering
J. Gary Sharp 116,275 (1) 100,000 16,275 (17)
President and
Chief Executive Officer
Frederick W. Burford 53,442 (2) 100,000 33,442 (17)
Executive Vice President
and Chief Financial
Officer
Haney A. Long, Jr. 30,843 (3) 50,000 20,843 (17)
Vice President of
Procurement and
Distribution
Gary W. Borth 46,231 (4) 50,000 36,231 (17)
Vice President of
Operations - Captain D's
Les Lockhart 38,402 (5) 50,000 28,402 (17)
Vice President of
Development
Osvaldo Cisneros 3,979,144 (6) 14,500 (13) 3,975,144 19.6%
Director
Paul J. Siu 11,800 (7) 12,500 (14) 1,800 (7)
Director
Edwin B. Spievack 12,500 (8) 12,500 (14) 2,500 (17)
Director
Thomas M. Taylor 2,604,523 (9) 14,500 (15) 2,602,523 12.8%
Director
John L. Marion, Jr. 9,500 (10) 14,500 (15) 7,500 (17)
Director
Douglas K. Bratton 142,785 (11) 14,500 (15) 140,785 (17)
Director
Lawrence F. Levy 2,000 (12) 12,500 (16) 0 (17)
Director
(l) Represents (i) 45,955 Common Shares owned by Mr.
Sharp and (ii) 70,320 Common Shares issuable upon the exercise of
presently exercisable options.
(2) Represents (i) 2,827 Common Shares owned by Mr.
Burford, (ii) 46,000 Common Shares issuable upon the exercise of
presently exercisable options and (iii) 4,615 Common Shares
issuable upon conversion of 8 1/4% Debentures of the Company.
(3) Represents (i) 1,600 Common Shares owned by Mr.
Long, (ii) 48 Common Shares owned indirectly by Mr. Long pursuant
to the 1989 Employee Stock Purchase Plan, (iii) 24,580 Common
Shares issuable upon the exercise of presently exercisable
options and (iv) 4,615 Common Shares issuable upon conversion of
8 1/4% Debentures of the Company.
(4) Represents (i) 7,000 Common Shares owned by Mr.
Borth, (ii) 911 Common Shares owned indirectly by Mr. Borth
pursuant to the 1989 Employee Stock Purchase Plan, and (iii)
38,320 Common Shares issuable upon the exercise of presently
exercisable options.
(5) Represents (i) 2,000 Common Shares owned by Mr.
Lockhart, (ii) 1,002 Common Shares owned indirectly by Mr.
Lockhart pursuant to the 1989 Employee Stock Purchase Plan,
(iii) 34,600 Common Shares issuable upon the exercise of
presently exercisable options and (iv) 800 Common Shares issuable
upon the exercise of options exercisable within 60 days.
(6) Includes 1,500,000 Common Shares owned by
Balanchine Corporation over which Mr. Cisneros has the right to
provide instructions as to voting, disposition and receipt of
dividends and thus may be deemed to have shared voting and shared
dispositive power over such Common Shares. Also includes
2,475,144 Common Shares beneficially owned by Macuto, S.A.
("Macuto"), of which Mr. Cisneros is the sole stockholder, and
thus he may be deemed to beneficially own any Common Shares
beneficially owned by Macuto. Mr. Cisneros may be deemed to have
shared voting power over 1,237,572 of such Common Shares and
shared dispositive power over all of such Common Shares. Also
includes 2,000 Common Shares issuable upon the exercise of
presently exercisable options and 2,000 options exercisable
within sixty days. Does not include 11,000 Comon Shares
obtainable upon exercise of presently non-exercisable options
granted pursuant to the Director Plan, 2,500 of which are subject
to shareholder approval of the amendment to such Plan.
(7) Represents (i) 1,800 Common Shares owned by Mr.
Siu, and (ii) 10,000 Common Shares issuable upon the exercise of
presently exercisable options. Does not include 5,000 Common
Shares obtainable upon exercise of presently non-exercisable
options granted pursuant to the Director Plan, 2,500 of which are
subject to shareholder approval of the amendment to such Plan.
(8) Represents (i) 2,500 Common Shares owned by Mr.
Spievack, and (ii) 10,000 Common Shares issuable upon the
exercise of presently exercisable options. Does not include
5,000 Common Shares obtainable upon exercise of presently non-
exercisable options granted pursuant to the Director Plan, 2,500
of which are subject to shareholder approval of the amendment to
such Plan.
(9) Represents (i) 1,589,703 Common Shares held by
The Airlie Group L.P., over which Mr. Taylor shares dispositive
power through TMT-FW, Inc., (ii) 546,154 Common Shares obtainable
upon conversion of the Company's 8 1/4% Debentures held by The
Airlie Group L.P., and (iii) 466,666 Common Shares obtainable
upon exercise of warrants held by The Airlie Group L.P. Also
includes 2,000 Common Shares issuable upon presently exercisable
options. Does not include 13,000 Common Shares obtainable upon
exercise of presently non-exercisable options granted pursuant to
the Non-Employee Directors Plan, 2,500 of which are subject to
shareholder approval of the amendment to such Plan.
(10) Includes 7,500 Common Shares and 2,000 Common
Shares issuable upon the exercise of presently exercisable
options. Does not include 13,000 Common Shares obtainable upon
exercise of presently non-exercisable options granted pursuant to
the Directors Plan, 2,500 of which are subject to shareholder
approval of the amendment to such Plan.
(11) Includes 6,834 Common Shares, 91,618 Common Shares
obtainable upon conversion of the Company's 5% Debentures and
35,833 Common Shares obtainable upon exercise of warrants, all
held by TPI Investors, L.P., over which Mr. Bratton has sole
voting and dispositive power. Also includes 1,000 Common Shares
owned by Mr. Bratton and 5,500 Common Shares owned by Mr. Bratton
and his spouse, as joint tenants, and 2,000 Common Shares
issuable upon exercise of presently exercisable options. Does
not include 500 Common Shares held in a trust for the benefit of
Mr. Bratton's minor son. Does not include 13,000 Common Shares
obtainable upon exercise of presently non-exercisable options
granted pursuant to the Directors Plan, 2,500 of which are
subject to shareholder approval of the amendment to such Plan.
(12) Includes 2,000 Common Shares issuable upon the
exercise of options granted under the Directors Plan, which
become exercisable within 60 days. Does not include 13,000
Common Shares obtainable upon exercise of presently non-
exercisable options granted pursuant to the Directors Plan, 2,500
of which are subject to shareholder approval of the amendment to
such Plan.
(13) Mr. Cisneros is vested in 20% of the option to
purchase 10,000 Common Shares and the remainder becomes
exercisable in increments of 20% of the original grant annually
commencing April 28, 1994. The option to purchase 2,500 Common
Shares becomes exercisable in 20% increments commencing November
1, 1994; the option to purchase 2,500 Common Shares, subject to
shareholder approval becomes exercisable in 20% increments
commencing February 1, 1995.
(14) Messrs. Siu and Spievack's options to purchase
10,000 Common Shares are presently exercisable. Their options to
purchase 2,500 Common Shares become exercisable in 20% increments
annually beginning November 1, 1994; the options to purchase
2,500 Common Shares, subject to shareholder approval, become
exercisable in 20% increments commencing February 1, 1995.
(15) Messrs. Taylor, Marion and Bratton's options to
purchase 10,000 and 2,500 Common Shares become exercisable in 20%
increments annually beginning March 19, 1994 and November 1,
1994, respectively; the options to purchase 2,500 Common Shares,
subject to shareholder approval, become exercisable in 20%
increments annually commencing February 1, 1995.
(16) Mr. Levy's options to purchase 10,000 and 2,500
Common shares become exercisable in 20% increments annually
beginning April 14, 1994 and November 1, 1994, respectively; the
option to purchase 2,500 Common Shares, subject to shareholder
approval, becomes exercisable in 20% increments commencing
February 1, 1995.
(17) Less than (1%) percent.
There is no assurance that any of the Registered
Shareholders will sell any or all of the Shares of Common
Stock offered by them hereunder. This Prospectus may be
amended or supplemented from time to time to add or delete
affiliates of the Company, who have acquired or will acquire
shares of Common Stock under the Plans, or who have disposed
of such shares of Common Stock, to or from the list of
Registered Shareholders and to update information concerning
the holdings of shares or options under the Plans by any of
the Registered Shareholders.
STATEMENT ON INDEMNIFICATION
Under provisions of the Company's By-laws,
directors and officers have a right to indemnification by
the Company, to the fullest extent permitted by New Jersey
law.
Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, 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 Act and is,
therefore, unenforceable.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents heretofore filed by TPI
Enterprises, Inc. (the "Company") with the Securities and
Exchange Commission pursuant to the Securities Exchange Act
of 1934 (File No. 0-7961) are incorporated herein by
reference:
1. Annual Report on Form 10-K for the year ended
December 26, 1993;
2. As to the Company's common stock, which is
registered under Section 12 of the Exchange Act, the
description of such class of securities as given in Article
Third of the Company's Restated Certificate of Incorporation
and Certificate of Amendment dated March 25, 1987 (filed as
an exhibit to the Company's Annual Report on Form 10-K for
the year ended December 31, 1986) and in the Certificate of
Amendment thereto dated November 10, 1988 (filed as an
exhibit to the Company's Annual Report on Form 10-K for the
year ended December 31, 1988).
3. All reports and other documents filed by the
Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act after the date hereof and prior to the
filing of a post effective amendment which indicates that
all securities offered hereby have been sold or which
registers all securities then remaining unsold, as of the
date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Paragraph SIXTH of TPI Enterprises' Restated
Certificate of Incorporation, as amended ("Paragraph Sixth")
limits personal liability of its officers and directors to
the fullest extent permitted by law and Article XI of TPI
Enterprises' By-Laws provides for the indemnification of TPI
Enterprises' officers and directors to the fullest extent
permitted by law.
Article XI of TPI Enterprises' By-Laws. Article
XI provides that directors and officers have a right to
indemnification, to the fullest extent permitted by law, for
expenses (including attorneys' fees), damages, punitive
damages, judgments, penalties, fines and amounts paid in
settlement incurred by any director or officer which arise
from any threatened, pending or completed proceeding (other
than a proceeding by or in the right of TPI Enterprises (a
"Derivative Action")) by reason of the fact that such person
was a director or officer of TPI Enterprises or is or was a
director or officer of TPI Enterprises serving, at the
request of TPI Enterprises, as a director, officer, trustee
or employee of another corporation, partnership, employee
benefit plan or other enterprise, unless the action giving
rise to the claim for indemnification was not taken in good
faith and in a manner such person reasonably believed to be
in or not opposed to the best interests of TPI Enterprises,
and in the case of a criminal proceeding, such person had no
reasonable cause to believe his conduct was unlawful. TPI
Enterprises shall pay the expenses of a director or officer
in connection with a Derivative Action which involves a
director or officer by reason of his being or having been a
director or officer if such officer or director acted in
good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of TPI Enterprises;
provided that where the director or officer is adjudged to
be liable to TPI Enterprises with respect to such claim,
issue or matter, indemnification would be available only to
the extent authorized by the court. Article XI provides
that the rights of directors and officers thereunder are
contractual rights.
In accordance with New Jersey law, Article XI
provides that indemnification of directors and officers may
be made by TPI Enterprises only as authorized in a specific
case upon a determination that the director or officer met
the applicable standard of conduct set forth above, unless
such indemnification is otherwise authorized by a court.
Such determination shall be made by the Board or a committee
thereof or, in certain circumstances, by written opinion of
independent legal counsel. Article XI also provides that
directors and officers may apply to a court for an award of
indemnification by TPI Enterprises for unpaid amounts
claimed thereunder, and that if such suit is successful on
the merits or otherwise, the expenses incurred in connection
with such proceeding shall also be reimbursed by TPI
Enterprises. Article XI provides that, while it is a
defense to such a suit that the person claiming
indemnification has not met the applicable standard of
conduct making indemnification permissible under the New
Jersey Business Corporation Act, the burden of proving such
defense shall be on TPI Enterprises and neither the failure
of TPI Enterprises to have made a determination that
indemnification is proper, nor an actual determination that
such person has not met the applicable standard of conduct,
nor the termination of any proceeding by judgment, order,
settlement, conviction or upon plea of nolo contendere,
shall be a defense to the action or create a presumption
that such person has not met the applicable standard of
conduct.
As permitted by New Jersey law, Article XI also
requires that TPI Enterprises advance expenses to an
indemnified party as authorized by the Board upon receipt of
an undertaking to repay those amounts unless it is
ultimately determined that such person is entitled to
indemnification. In addition, Article XI provides, as
permitted by New Jersey law, that TPI Enterprises may
purchase and maintain insurance on behalf of its directors
and officers against any expenses incurred and liabilities
asserted against any director or officer by reason of his
being or having been such, whether or not TPI Enterprises
would have the power to indemnify such person against such
expenses and liabilities under Article XI. TPI Enterprises
presently maintains such insurance on behalf of its
directors and officers.
Article XI further provides that (i) TPI
Enterprises may indemnify directors and officers against
excise taxes assessed on a person with respect to an
employee benefit plan; and (ii) with respect to employee
benefit plans, a person who acted in good faith and in a
manner he believed to be in the best interest of the
participants and beneficiaries of an employee benefit plan
will be deemed to have acted not opposed to the best
interest of TPI Enterprises as referred to in Article XI.
Paragraph Sixth of the Restated Certificate of
Incorporation. Paragraph Sixth is intended to give TPI
Enterprises' directors and officers the fullest protection
against personal liability that is permitted under the New
Jersey Business Corporation Act. Paragraph Sixth eliminates
personal liability of directors and officers to TPI
Enterprises or its shareholders for monetary damages for
breach of any duty as a director or officer owed to TPI
Enterprises or its shareholders, except for any breach of
duty based upon an act or omission: (i) in breach of the
duty of loyalty to TPI Enterprises or its shareholders; (ii)
not in good faith or involving a knowing violation of law;
or (iii) resulting in receipt by the director or officer of
an improper personal benefit. Paragraph Sixth further
provides that no amendment or repeal of Paragraph Sixth
shall adversely affect any right or protection of a director
or officer of TPI Enterprises existing at the time of such
amendment or repeal.
Paragraph Sixth eliminates personal liability of
directors and officers for violations of their fiduciary
duty of care and absolves directors and officers from
liability to TPI Enterprises or its shareholders for
negligence in the performance of their duties, including
gross negligence. Paragraph Sixth does not, however, limit
the availability of equitable remedies such as an injunction
or recession based on a director's or officer's breach of
the duty of care. in addition, Paragraph Sixth does not
insulate directors and officers of TPI Enterprises from
liability to TPI Enterprises or its shareholders for breach
of the duty of loyalty or for specified conduct involving
"bad faith." Paragraph Sixth does not apply to acts or
omissions of directors or officers that occurred before its
adoption, and does not limit or affect the shareholders'
ability to seek and obtain relief under any other law,
including the federal securities laws.
Insurance. The Directors and officers of TPI
Enterprises are insured against losses arising from any
claim against them as such for wrongful acts or omissions,
subject to certain limitations.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
Exhibit
Number Description
4(a) TPI Enterprises, Inc. 1992 Stock Option
and Incentive Plan (filed as an exhibit
to the Company's Annual Report on Form
10-K for the year ended December 31,
1991 and incorporated herein by
reference)
4(b) TPI Enterprises, Inc. Non-Employee
Directors Stock Option Plan (filed as an
exhibit to the Company's Annual Report
on Form 10-K for the year ended December
31, 1991 and incorporated herein by
reference) and amendment thereto subject
to shareholder ratification (filed as an
exhibit to the Company's Annual Report
on Form 10-K for the year ended December
26, 1993)
4(c) & (d) Description of the Company's common
stock as given in Article Third of the
Company's Restated Certificate of
Incorporation and Certificate of
Amendment dated March 25, 1987 (filed as
an exhibit to the Company's Annual
Report on Form 10-K for the year ended
December 31, 1991 and incorporated
herein by reference as Exhibit 4(c) and
in the Certificate of Amendment thereto
dated November 10, 1988 (filed as an
exhibit to the Company's Annual Report
on Form 10-K for the year ended December
31, 1988 and incorporated herein by
reference as Exhibit 4(d))
24 Consent of Deloitte and Touche.
An opinion of counsel (Exhibit Number 5) is not
being filed since the securities being registered are not
original issuance securities.
ITEM 9. UNDERTAKINGS
The Company hereby undertakes:
1. (a) -- To file, during any period in which
offers or sales are being made, a post-
effective amendment to the 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.
(b) -- That, for the purpose of determining any
liability under the Securities Act of
1933, 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 that time shall be
deemed to be the initial bona fide
offering thereof.
(c) -- To remove from registration by means of
a post-effective amendment any of the
securities being registered which remain
unsold at the termination of the
offering.
2. -- That, for purposes of determining any
liability under the Securities Act of
1933, each filing of the registrant's
annual report pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each
filing of an employee benefit plan's
annual report pursuant to Section 15(d)
of the Securities Exchange Act of 1934)
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.
3. -- Insofar as indemnification for
liabilities arising under the Securities
Act of 1933 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 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 Act and will be governed by the
final adjudication of such issue.
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 West Palm Beach,
and the State of Florida, on the 11th day of April, 1994.
TPI ENTERPRISES, INC.
By: /s/ Stephen R. Cohen
Stephen R. Cohen
Chairman of the Board
of Directors
Pursuant to the requirements of the Securities Act
of 1933, this registration statement has been signed below
by the following persons in the capacities and on the dates
indicated.
Signature Title Date
/s/ Stephen R. Cohen Chairman of the
Stephen R. Cohen Board and Director April 11, 1994
/s/ J. Gary Sharp President, Chief April 11, 1994
J. Gary Sharp Executive Officer
and Director
/s/ Frederick W. Burford Executive Vice April 11, 1994
Frederick W. Burford President, Chief
Financial Officer
and Director
/s/ Paul James Siu Director April 11, 1994
Paul James Siu
/s/ Edwin B. Spievack Director April 11, 1994
Edwin B. Spievack
/s/ Osvaldo Cisneros Director April 11, 1994
Osvaldo Cisneros
/s/ Thomas M. Taylor Director April 11, 1994
Thomas M. Taylor
/s/ John L. Marion, Jr. Director April 11, 1994
John L. Marion, Jr.
/s/ Douglas K. Bratton Director April 11, 1994
Douglas K. Bratton
/s/ Lawrence F. Levy Director April 11, 1994
Lawrence F. Levy
Exhibit Index
Exhibit
Number Description
4(a) TPI Enterprises, Inc. 1992 Stock Option and
Incentive Plan (filed as an exhibit to the
Company's Annual Report on Form 10-K for the
year ended December 31, 1991 and
incorporated herein by reference).
4(b) TPI Enterprises, Inc. Non-Employee Directors
Stock Option Plan (filed as an exhibit to
the Company's Annual Report on Form 10-K for
the year ended December 31, 1991 and
incorporated herein by reference) and
amendment thereto subject to shareholder
ratification (filed as an exhibit to the
Company's Annual Report on Form 10-K for the
year ended December 26, 1993 and
incorporated herein by reference).
4(c) & (d) Description of the Company's common stock as
given in Article Third of the Company's
Restated Certificate of Incorporation and
Certificate of Amendment dated March 25,
1987 (filed as an exhibit to the Company's
Annual Report on Form 10-K for the year
ended December 31, 1991 and incorporated
herein by reference as Exhibit 4(c) and in
the Certificate of Amendment thereto dated
November 10, 1988 (filed as an exhibit to
the Company's Annual Report on Form 10-K for
the year ended December 31, 1988 and
incorporated herein by reference as Exhibit
4(d)).
24 Consent of Deloitte and Touche
Exhibit 24
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Registration Statement of TPI Enterprises, Inc. on Form S-8 of
our reports dated March 18, 1994, appearing in the Annual Report
of Form 10-K of TPI Enterprises, Inc. for the fiscal year ended
December 26, 1993.
/s/ Deloitte & Touche
Memphis, Tennessee
April 11, 1994
