SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 6)
TPI ENTERPRISES, INC.
(Name of issuer)
Common Stock, Par Value $.01 Per Share
(Title of class of securities)
872623-10-3
(CUSIP number)
Stephen R. Cohen
c/o TPI Enterprises, Inc.
Phillips Point East Tower, Suite 909
777 South Flagler Drive, West Palm Beach, FL 33401
(Name, address and telephone number of person
authorized to receive notices and communications)
May 24, 1994
(Date of event which requires filing of this statement)
If the filing person has previously filed a
statement on Schedule 13G to report the acquisition which is
the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1 (b)(3) or (4), check the
following box [ ].
Check the following box if a fee is being paid
with the statement [ ]. (A fee is not required only if the
reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of
the class of securities described in Item 1; and (2) has
filed no amendment subsequent thereto reporting beneficial
ownership of five percent or less of such class.) (See Rule
13d-7)
CUSIP No. 872623-10-3
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Stephen R. Cohen
S.S. # ###-##-####
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
PF/00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
7 SOLE VOTING POWER
NUMBER OF
1,220,144
SHARES
8 SHARED VOTING POWER
BENEFICIALLY
1,000,000
OWNED BY EACH
9 SOLE DISPOSITIVE POWER
REPORTING
1,220,144
PERSON WITH 10 SHARED DISPOSITIVE POWER
1,000,000
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,220,144
12 CHECK BOX IF THE AGGREGATE AMOUNT IN BOX (11) EXCLUDES CERTAIN
SHARES* []
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.6%
14 TYPE OF REPORTING PERSON*
IN
CUSIP No. 872623-10-3
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
C&C Investment Holdings, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF/00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF 1,075,144. See Items 5 and 6 for a
description of certain rights of the partners
SHARES of C&C Investment Holdings, L.P. to cause the
voting of these Shares
BENEFICIALLY 8 SHARED VOTING POWER
- 0 -
OWNED BY EACH
9 SOLE DISPOSITIVE POWER
REPORTING 1,075,144. See Items 5 and 6 for a
description of certain rights of the partners
PERSON WITH of C&C Investment Holdings, L.P. to cause the
disposition of these Shares
10 SHARED DISPOSITIVE POWER
- 0 -
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,075,144
12 CHECK BOX IF THE AGGREGATE AMOUNT IN BOX (11) EXCLUDES CERTAIN
SHARES* [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.3%
14 TYPE OF REPORTING PERSON*
PN
This Statement amends and restates, as amended, the
Schedule 13D filed by Stephen R. Cohen dated November 23, 1987
(the "Original Schedule 13D"), as amended by the Schedule 13D
Amendment No. 1 dated November 30, 1990 ("Amendment No. 1"), the
Schedule 13D Amendment No. 2 filed by Mr. Cohen and C&C
Investment Holdings, L.P. ("C&C") dated March 9, 1991 ("Amendment
No. 2"), the Schedule 13D Amendment No. 3 filed by Mr. Cohen and
C&C dated May 3, 1991 ("Amendment No. 3"), the Schedule 13D
Amendment No. 4 filed by Mr. Cohen and C&C dated May 6, 1992
("Amendment No. 4") and the Schedule 13D Amendment No. 5 filed by
Mr. Cohen and C&C dated August 19, 1993 ("Amendment No. 5" and,
together with the Original Schedule 13D, Amendment No. 1,
Amendment No. 2, Amendment No. 3, and Amendment No. 5, the
"Schedule 13D"), as set forth in this Amendment No. 6.
Capitalized terms not defined herein have the meanings assigned
thereto in the Schedule 13D.
ITEM 1. SECURITY AND ISSUER.
This Schedule 13D relates to the common stock, par
value $.01 per share (the "Shares"), of TPI Enterprises, Inc., a
New Jersey corporation (the "Company"). The Company's principal
executive offices are located at TPI Enterprises, Inc., Phillips
Point, East Tower, Suite 909, 777 South Flagler Drive, West Palm
Beach, FL 33401.
ITEM 2. IDENTITY AND BACKGROUND.
Item 2 of the Schedule 13D is hereby amended to read in
its entirety as follows:
(a)-(c), (f) This Statement is filed jointly by
Stephen R. Cohen and C&C Investment Holdings, L.P., a Delaware
limited partnership ("C&C"), formed for the purpose of investing
in Shares. Stephen R. Cohen is the General Partner of C&C, and
Inversiones Macuto, S.A., a Panamanian corporation ("Macuto"), is
the special limited partner of C&C. The present principal
occupation or employment of Stephen R. Cohen is Chairman of the
Board of the Company. The principal office and business address
of both Stephen R. Cohen and C&C is Phillips Point, East Tower,
Suite 909, 777 South Flagler Drive, West Palm Beach, FL 33401.
Stephen R. Cohen is a citizen of the United States. References
herein to "Mr. Cohen" are to Stephen R. Cohen.
(d)-(e) During the past five years, neither C&C nor
Mr. Cohen has been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors). During the past
five years, neither C&C nor Mr. Cohen has been a party to a civil
proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding been subject to a
judgment, decree or final order enjoining future violations of,
prohibiting or mandating activities subject to, federal or state
securities laws or finding any violation with respect to such
laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Item 3 of the Schedule 13D is hereby amended and
restated to read as follows:
Mr. Cohen owns 500,000 Shares (in addition to the
1,075,144 Shares he may be deemed to beneficially own as the
general partner of C&C and as a result of the Option Agreement
described in Items 3, 4 and 6, and the 645,000 Shares he has the
right to acquire pursuant to presently exercisable options
referred in Item 5 hereof). The purchase price of the 500,000
Shares was paid with Mr. Cohen's personal funds and funds
originally advanced to Mr. Cohen by Bear, Stearns & Co., Inc. and
Shearson Lehman Brothers Inc. (a predecessor of Smith Barney
Shearson Incorporated ("Smith Barney")) pursuant to margin loans.
Mr. Cohen's current margin indebtedness, which is secured by the
500,000 Shares, is $1,287,415, all of which has been advanced by
Smith Barney (the "Smith Barney Advance").
Pursuant to a Stock Sale Agreement dated March 4, 1991
by and between American Multi-Cinema, Inc. ("AMC") and C&C (the
"Stock Sale Agreement"), C&C purchased from AMC 1,000,000 Shares
for a purchase price of $5.5 million on April 25, 1991. C&C
obtained the $5.5 million to purchase the 1,000,000 Shares to the
Stock Sale Agreement by drawing on a letter of credit issued by
The Bank of New York (the "Letter of Credit") as a capital
contribution to C&C by Macuto. The description of the Letter of
Credit contained in this Statement does not purport to be
complete, and such description is qualified in its entirety by
reference to the Letter of Credit, a copy of which is attached
as Exhibit 7 to the Schedule 13D.
In addition, C&C and AMC entered into an Option
Agreement dated March 4, 1991 (the "Option Agreement"), pursuant
to which AMC agreed, subject to the terms and conditions set
forth therein, to grant C&C an option (the "Option") to purchase
up to 1,475,144 Shares (the "Option Shares") then owned by AMC.
The Option Agreement provides that, subject to the terms and
conditions set forth therein, C&C may exercise the Option in
whole or in part at any time or from time to time on or before
the day preceding the tenth anniversary of April 25, 1991 (the
"Effective Time"). The purchase price per Share under the Option
was $6.00 for a period of three years following the Effective
Time and thereafter the purchase price per Share increases by
$0.50 per Share for each successive year throughout the balance
of the ten-year term of the Option Agreement (to a maximum
purchase price of $9.50 per Share during the last year of such
term). AMC has the right to sell the Option Shares (and thereby
terminate the Option) under the circumstances and in accordance
with the procedures summarized in Item 6 hereof and has taken
action pursuant thereto which will permit AMC to sell the
remaining Option Shares.
Under the C&C Limited Partnership Agreement, as
amended, Mr. Cohen has the right to determine whether to exercise
the Option (or the Right of First Offer (as hereinafter defined))
with respect to the Option Shares. See Item 6 of this Statement
for a description of the 1994 Letter Agreement (as defined
below).
On May 24, 1994, C&C exercised the Option with
respect to 1,400,000 Option Shares at a purchase price of $6.50
per Share or an aggregate purchase price of $9,100,000. C&C's
source of funds was a capital contribution by Mr. Cohen of
$4,794,218 and funds advanced to C&C by Cantor Fitzgerald & Co.
("CF&Co.") in the amount of $4,305,782 as margin indebtedness
pursuant to which C&C pledged 1,400,000 Option Shares to CF&Co.
C&C intends to repay such margin loan and such capital
contribution with the proceeds of the sale of the 1,400,000
Option Shares described in Item 5(c).
Mr. Cohen obtained the funds for this capital
contribution to C&C from personal cash balances in the amount of
$3,506,803 and the Smith Barney Advance.
See Item 4 and 6 of this Statement for a description of
certain additional terms of the Stock Sale Agreement, the Option
Agreement, the C&C Limited Partnership Agreement an a letter
agreement, dated March 4, 1991 between Mr. Cohen and AMC (the
"Letter Agreement") which terminated the Shareholders' Agreement
and Revocable Proxies (which instruments are summarized in, and
attached as exhibits to, the Original Schedule 13D dated November
23, 1987 filed by Mr. Cohen) and which Letter Agreement was
entered into by Mr. Cohen in consideration of the March 1991
transactions.
ITEM 4. PURPOSE OF TRANSACTION.
Item 4 is hereby amended and restated as follows:
In connection with and in consideration of the
execution and delivery of the Stock Sale Agreement, the Option
Agreement and the C&C Limited Partnership Agreement, Mr. Cohen
and AMC entered into the Letter Agreement on March 4, 1991
terminating the Shareholders' Agreement and Revocable Proxies
effective April 19, 1991. The description of the Letter
Agreement contained in this Statement does not purport to be
complete, and such description is qualified in its entirety by
reference to the Letter Agreement, a copy of which is attached
hereto as Exhibit 11 to the Schedule 13D.
Based upon, among other things, the Company's results
of operations and prospects and the then prevailing market
conditions, Mr. Cohen and/or C&C may acquire additional Shares or
dispose of Shares owned by them from time to time.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) Item 5(a) of the Schedule 13D is hereby amended and
restated as follows:
In addition to the 500,000 Shares Mr. Cohen owns in his
individual capacity and the 645,000 Shares he is deemed to
beneficially own as a result of presently exercisable employee
stock options, Mr. Cohen may be deemed to beneficially own, as a
result of being the general partner of C&C and the terms of the
C&C Limited Partnership Agreement, the 1,000,000 Shares (the
"Existing Shares") purchased by C&C from AMC pursuant to the
Stock Sale Agreement and 75,144 Shares remaining subject to the
Option. Accordingly, Mr. Cohen may be deemed to beneficially own
an aggregate of 2,220,144 Shares (approximately 10.6% of the
outstanding Shares assuming the exercise of all 645,000 employee
stock options). See Item 6 for a description of an agreement to
distribute the Existing Shares to the partners of C&C.
C&C acquired, as a result of the consummation of the
Stock Sale Agreement, beneficial ownership of 1,000,000 Existing
Shares purchased by C&C from AMC. In addition, C&C beneficially
owns 75,144 Shares remaining subject to the Option Agreement.
Accordingly, C&C beneficially owns an aggregate of 1,075,144
Shares (approximately 5.2% of the outstanding Shares).
(b) Item 5(b) of the Schedule 13D is hereby amended and
restated as follows:
Mr. Cohen, in his individual capacity (without regard
to Shares owned by C&C), owns 500,000 Shares with respect to
which he has sole voting and dispositive power and holds
presently exercisable employee options to purchase 645,000 Shares
with respect to which he would have sole voting and dispositive
power upon the exercise of such employee options. In addition,
as the general partner of C&C and as a result of the Option
Agreement, Mr. Cohen may be deemed to have sole voting power over
75,144 Shares and shared voting power with Macuto over 1,000,000
Shares and to have sole dispositive power over 75,144 Shares and
shared dispositive power over 1,000,000 Shares. Accordingly, Mr.
Cohen may be deemed to have (a) sole voting power over an
aggregate of 1,220,144 Shares, (b) shared voting power over an
aggregate of 1,000,000 Shares, (c) sole dispositive power over an
aggregate of 1,220,144 Shares and (d) shared dispositive power
over an aggregate of 1,000,000 Shares. See Item 6.
In accordance with the 1994 Letter Agreement (as
defined below), in which the general partner and special limited
partner of C&C have agreed as promptly as practicable to
distribute the 1,000,000 Existing Shares currently beneficially
owned by C&C by distributing 990,000 Existing Shares to the
special limited partner and 10,000 Existing Shares to the general
partner of C&C, upon consummation of such distribution, C&C will
beneficially own and have sole voting and dispositive power with
respect to 75,144 Shares (to the extent such Shares continue to
be subject to the Option); and Mr. Cohen at such time may be
deemed to have (i) sole voting and dispositive power over an
aggregate 1,230,144 Shares and (ii) shared voting and dispositive
power over 0 Shares.
The information contained in the following two
paragraphs was taken from the Schedule 13D of Macuto, dated March
4, 1991 (the "Macuto Schedule 13D").
Macuto is a corporation organized under the laws of
Panama. Macuto is the special limited partner of C&C. The
principal place of business of Macuto is Calle 53 Con Avenida
Lewis, El Dorado, Panama. Macuto was formed for the purpose of
investing in securities of the Company. Macuto is controlled by
Oswaldo Cisneros, a Venezuelan citizen who principal business
address is Apt. D, 70519, Los Ruices, Caracas, Venezuela. Mr.
Cisneros, as the sole shareholder of Macuto, has the sole power
to direct the voting and disposition of investments of Macuto.
During the last 5 years, neither Macuto nor any of the
persons set forth on Schedule A to the Macuto Schedule 13D has
been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors). During the past five years,
neither Macuto nor any of the persons set forth on Schedule A to
the Macuto Schedule 13D has been a party to a civil proceeding of
a judicial or administrative body of competent jurisdiction and
as a result of such proceeding has been subject to a judgment,
decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to federal or state
securities laws or finding any violation with respect to such
laws.
(c) Item 5(c) of the Schedule 13D is hereby amended
and restated to read as follows:
On May 11, 1994, Mr. Cohen sold 34,288 Shares in a
brokerage transaction at a price of $8.00 per Share, net of
commissions. On May 24, 1994, C&C exercised the Option with
respect to 1,400,000 Option Shares at a purchase price of $6.50
per Share. On May 24, 1994, C&C sold 1,400,000 Option Shares in
brokerage transactions at $7.375 per Share with respect to
1,343,000 Option Shares and $7.575 per Option Share with respect
to 57,000 Option Shares, in each case net of brokerage
commissions.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR
RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER.
Item 6 of the Schedule 13D is hereby amended and
restated to read as follows:
Stock Sale Agreement
On April 25, 1991, C&C consummated the Stock Sale
Agreement by purchasing from AMC 1,000,000 Shares for a purchase
price of $5.5 million.
The description of the Stock Sale Agreement contained
in this Statement does not purport to be complete and such
description is qualified in its entirety by reference to the
Stock Sale Agreement, a copy of which is attached as Exhibit 8 to
the Schedule 13D.
Option Agreement; Sale of 1,400,000 Option Shares
On March 4, 1991, AMC and C&C entered into the Option
Agreement in which, subject to the terms and conditions set forth
therein, AMC granted C&C the Option to purchase up to 1,475,144
Option Shares. The purchase price for the Option Shares is
payable in cash and was initially $6.00 per Share; the purchase
price remained at $6.00 per Share for three years following the
Effective Time. After the third anniversary of the Effective
Time, the purchase price for the Option Shares increased by $0.50
per Share and will increase by $.50 per Share for each successive
year throughout the balance of the ten-year term of the Option
Agreement (to a maximum of $9.50 per share for the last year of
the Option Agreement). C&C may exercise the Option in whole or
in part at any time before the expiration of the Option
Agreement. After C&C has delivered notice of its exercise of the
Option to purchase some or all of the Option Shares, it may
assign its rights to purchase such Shares to another person,
subject to the terms and conditions of the Option Agreement. The
Option Agreement became effective April 25, 1991.
For a three-year period following the Effective Time
(the "Blackout Period"), AMC could not transfer any of the Option
shares to a third party without the consent of C&C. Following
the Blackout Period, when AMC desires to sell such Option Shares,
it must notify C&C of the terms on which it is willing to sell
the Option Shares. C&C then has the right to purchase such
Shares upon such terms (the "Right of First Offer"). If C&C does
not exercise such right, AMC has the right, within 180 days of
its notice, to sell such Shares for cash or for cash and notes on
terms no more favorable to a third party than those offered to
C&C. AMC may make only one such offer a year to C&C unless a
Share Transaction (as hereinafter defined) is proposed.
AMC has the right to transfer the Option Shares (to the
extent the Option has not been exercised) pursuant to a
transaction proposed by C&C or any of its affiliates which
requires actions or decisions by shareholders of the Company and
which, if consummated, would alter the ownership of the Option
Shares and other Shares (such transaction, including without
limitation a merger or other business combination, tender offer
or exchange offer, collectively referred to herein as a "Share
Transaction"). In addition, if a Share Transaction is proposed
by a third party, AMC may transfer the Option Shares (to the
extent the Option has not been exercised) if C&C or any of its
affiliates transfers any Shares pursuant to or in connection with
such Share Transaction. In the event that (a) C&C or any of its
affiliates transfers any Shares or votes Shares in favor of such
Share Transaction or any related Share Transaction or (b) if such
Share Transaction is a merger or other business combination which
requires the approval of the affirmative vote of a number of
Shares which is less than the number of Shares to be voted by the
person proposing such Share Transaction then, to the extent AMC
requests, C&C will vote the Option Shares in a manner which
protects AMC's appraisal rights and AMC will have the right to
transfer the Option Shares pursuant to such Share Transaction (to
the extent the Option has not been exercised).
In the Option Agreement, AMC has granted C&C an
irrevocable proxy to vote the Option Shares as long as they are
subject to Option.
The foregoing description of the Option Agreement does not
purport to be complete and such description is qualified in its
entirety by reference to the Option Agreement, a copy of which is
attached as Exhibit 9 to the Schedule 13D.
Pursuant to a letter dated April 26, 1994, AMC offered
to sell C&C 1,475,144 Option Shares at a price of $6.50 per Share
in cash pursuant to the Right of First Offer provisions of the
Option Agreement and notified C&C that if C&C elected not to
purchase such Shares, AMC would attempt to sell such Shares in
privately negotiated transactions or in the open market within
the period permitted under the Option Agreement.
On May 24, 1994, C&C exercised the Option with respect
to 1,400,000 Option Shares at a price of $6.50 per Share and sold
1,400,000 Option Shares in brokerage transactions at a net price
of $7.375 per Share with respect to 1,343,000 Option Shares and a
net price of $7.575 per Share with respect to 57,000 Option
Shares. Mr. Cohen has agreed to indemnify CF&Co. from certain
liabilities, including certain liabilities under the Securities
Act of 1933, as amended, pursuant to the terms of an
Indemnification Agreement (the "Indemnification Agreement")
between Mr. Cohen and CF&Co. The foregoing description of the
Indemnification Agreement does not purport to be complete and is
modified in its entirety by reference to the Indemnification
Agreement, a copy of which is attached as Exhibit 19 to the
Schedule 13D.
C&C Limited Partnership Agreement
On March 4, 1991, Mr. Cohen and Macuto entered into the
C&C Limited Partnership Agreement, a copy of which is attached as
Exhibit 10 to the Schedule 13D (the "Partnership Agreement"),
pursuant to which the parties formed C&C for the purpose of
entering into the Stock Sale Agreement and the Option Agreement.
On April 22, 1992, Mr. Cohen and Macuto entered into the Amended
Agreement of Limited Partnership of the C&C Investment Holdings,
L.P., a copy of which is attached as Exhibit 17 to the Schedule
13D (the "Amended Partnership Agreement"), which was amended
pursuant to a letter agreement between Mr. Cohen and Macuto dated
May 23, 1994, a copy of which is attached hereto as Exhibit 18
(the "1994 Letter Agreement"). The Partnership Agreement, as
amended by the Amended Partnership Agreement and the 1994 Letter
Agreement is referred to herein as the "C&C Limited Partnership
Agreement".
Mr. Cohen understands that Macuto is controlled by
Osvaldo Cisneros, a Venezuelan citizen whose principal business
address is Aptd. 70519, Los Ruices, Caracas, Venezuela.
According to a Statement on Schedule 13G dated February 19, 1991,
(as amended the "Schedule 13G") filed by Balanchine Corporation,
a Turks & Caicos Islands corporation ("Balanchine"), Balanchine
owns 1.5 million Shares and Balanchine is managed by Coutts & Co.
("Coutts"), a Bahamian bank (formerly NatWest International Trust
Corporation"). The Schedule 13G states that Mr. Cisneros has the
right to provide instructions to Coutts as to matters relating to
voting, disposition and receipt of dividends with respect to such
1.5 million Shares and that, accordingly, Mr. Cisneros may be
deemed to be the beneficial owner of such Shares.
Pursuant to the C&C Limited Partnership Agreement,
Macuto made an initial capital contribution to C&C of $5.5
million in cash and Mr. Cohen made an initial capital
contribution to C&C of $55,000 in cash. The initial partnership
percentage interests of Mr. Cohen and Macuto are 1% and 99%,
respectively. Pursuant to the C&C Limited Partnership Agreement,
an additional cash capital contribution was made by Mr. Cohen on
each of the first, second and third anniversary of the Effective
Time in the amount of $100,000. Within ninety (90) days
following each of these capital contributions, the general
partner is required to cause C&C to contribute to Qualified
Organizations (as defined in the C&C Limited Partnership
Agreement) an amount equal to such capital contributions.
The C&C Limited Partnership Agreement, as amended by
the 1994 Letter Agreement, provides that Mr. Cohen, as the
general partner, is authorized in his sole discretion and without
the prior consent of or notice to Macuto (and without making any
capital contribution to C&C) in the name and on behalf of C&C (a)
to exercise the Option and/or the Right of First Offer and to
transfer sell, assign or otherwise dispose of any or all Options
Shares (or any interest therein) acquired (or to be acquired)
pursuant to the exercise by C&C of the Option and/or the Right of
First Offer and (b) to incur and pay expenses in connection with
the foregoing; provided, however, Mr. Cohen shall have no right
to sell, assign, transfer, exercise or leverage any of the
1,000,000 Existing Shares held by the custodian pursuant to the
C&C Limited Partnership Agreement or otherwise expose such
Existing Shares to partnership liabilities. The C&C Limited
Partnership Agreement, as amended by the 1994 Letter Agreement,
further provides that no additional capital contribution shall be
required by Macuto and that no Shares acquired pursuant to the
Option or the Right of First Offer shall be required to be
delivered to the custodian under the C&C Limited Partnership
Agreement. The C&C Limited Partnership Agreement, as amended by
the 1994 Letter Agreement, further provides that Mr. Cohen shall
have the right to make a temporary capital contribution to C&C
for the purpose of exercising the Option and to pledge and
leverage the Option Shares on a short-term basis for the purpose
of exercising the Option; any funds contributed by Mr. Cohen to
C&C in connection therewith shall be repaid by C&C to Mr. Cohen
(together with interest paid on such contribution by Mr. Cohen)
immediately upon receipt of payment for any Option Shares.
Pursuant to the 1994 Letter Agreement, Mr. Cohen and
Macuto have agreed as promptly as practicable to cause 990,000 of
the Existing Shares to be distributed to Macuto and 10,000 of the
Existing Shares to be distributed to Mr. Cohen. The 1994 Letter
Agreement also deletes the provisions of the C&C Limited
Partnership Agreement that had required Mr. Cohen to make
additional capital contributions to C&C and required C&C to make
certain charitable contributions.
Pursuant to the 1994 Letter Agreement, Mr. Cohen and
Macuto have agreed that, consistent with the terms of the C&C Limited
Partnership Agreement, any profit or gain arising out of the
Option Shares will be allocated in accordance with the following
ratios: 1,000,000/1,475,144 to the general partner and
475,144/1,475,144 to the special limited partner. Mr. Cohen and
Macuto have agreed that nothing contained in the 1994 Letter
Agreement shall modify the partnership interests of the general
partner or the special limited partner contained in the C&C
Limited Partnership Agreement to the extent such partnership
interests relate to the Existing Shares.
The C&C Limited Partnership Agreement further provides
that, subject to the 1994 Letter Agreement, no distribution to
the partners may be made without the consent of both partners,
provided, however, that after the fifth anniversary of the
Effective Time, either partner shall have the right to cause C&C
to make a distribution to the partners of all the Shares owned by
C&C in accordance with each partner's respective partnership
percentage interest (or to cause C&C to liquidate the Shares
allocable to such partner and distribute the cash proceeds
thereof to such partner). Mr. Cohen intends to propose that C&C
make a distribution of the net gains from of the sale of the
1,400,000 Option Shares to the partners of C&C.
The C&C Limited Partnership Agreement provides that Mr.
Cohen, as the general partner, shall have full power to control
all aspects of the investment activities and affairs of C&C
except as specifically provided therein. Except as provided in
the 1994 Letter Agreement, Macuto's consent is required to, among
other things: (i) transfer or pledge any Shares owned by C&C;
(ii) acquire Shares on behalf of C&C (except to the extent the
C&C Limited Partnership Agreement permits Mr. Cohen to exercise
the Option and Right of First Offer on behalf of C&C); (iii)
amend the Stock Sale Agreement or the Option Agreement, except to
extend the termination date under the Stock Sale Agreement to a
date not later than August 28, 1991; (iv) invest the initial
capital contributions of the partners pending the Effective Time
other than in investments specified therein; (v) admit additional
partners to C&C; or (vi) incur expenses on behalf of C&C in
excess of $50,000 in any fiscal year.
As provided in the C&C Limited Partnership Agreement,
Mr. Cohen must provide notice (a "Voting Notice") to Macuto
specifying how Mr. Cohen, as general partner, intends to vote the
Shares owned by C&C and any Shares held by AMC which are subject
to the Option Agreement (the "Voting Shares") at any meeting or
pursuant to a consent solicitation of the Company's shareholders.
If Macuto disagrees with the determination of Mr. Cohen in the
Voting Notice, Macuto may provide notice to Mr. Cohen specifying
how Macuto desires the Voting Shares to be voted. If Macuto
timely provides such a notice, Mr. Cohen, as general partner,
will cause C&C to vote (i) the Shares purchased by C&C pursuant
to the Stock Sale Agreement and one-half of any Remaining Option
Shares (as defined in the C&C Limited Partnership Agreement) as
specified by Macuto and (ii) the remaining voting Shares as
determined by Mr. Cohen. If Macuto does not deliver a voting
disagreement notice within the specified time period, Mr. Cohen
shall cause all of the Voting Shares to be voted as specified by
him in the Voting Notice. Mr. Cohen, as general partner, shall
have discretionary authority to vote all voting Shares with
respect to matters not set forth in a proxy statement, but
properly presented for shareholder action at a shareholders
meeting of the Company.
The C&C Limited Partnership Agreement includes
provisions limiting the liability of, and indemnifying, Mr.
Cohen. The C&C Limited Partnership Agreement provides that
Macuto may not transfer all or any portion of its partnership
interest in C&C unless, among other things, it has received the
written consent of Mr. Cohen, which consent will not be
unreasonably withheld.
The initial term of C&C is 10 years from March 4, 1991,
unless sooner terminated in accordance with the terms of the C&C
Limited Partnership Agreement.
The foregoing description of the C&C Limited
Partnership Agreement does not purport to be complete and is
qualified in its entirety by reference to the Amended Partnership
Agreement, a copy of which is attached as Exhibit 17 to the
Schedule 13D and the 1994 Letter Agreement, a copy of which is
attached as Exhibit 18 to the Schedule 13D.
See Item 4 for a description of the Letter Agreement
which was entered into by Mr. Cohen in consideration of
agreements entered into in March 1991.
The Shareholders' Agreement and the Revocable Proxies
attached as Exhibits 1, 2 and 3 to the Schedule 13D were
terminated by a letter agreement dated March 4, 1991 between Mr.
Cohen and AMC.
The Company filed a Registration Statement on Form S-3
with the Securities and Exchange Commission on March 25, 1993,
registering, among other shares of common stock of the Company,
the 3,799,432 Shares then beneficially owned by Mr. Cohen on such
date, including Shares issuable upon the exercise of his stock
options, and the 2,475,144 Shares then beneficially owned by C&C.
Such Registration Statement became effective May 11, 1993.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 1. Shareholder's Agreement dated November 12, 1987
between Stephen R. Cohen and American Multi-
Cinema, Inc.
Exhibit 2. Revocable Proxy dated November 12, 1987 from
American Multi-Cinema, Inc. in favor of Stephen R.
Cohen and Phillip Ean Cohen.
Exhibit 3. Revocable Proxy dated November 12, 1987 from
Stephen R. Cohen in favor of Stephen R. Cohen and
Phillip Ean Cohen.
Exhibit 4. Form of Customer Agreement with Bear, Stearns &
Co., Inc.
Exhibit 5. Form of Client Agreement with Shearson Lehman
Brothers Inc.
Exhibit 6. Press Release issued by the Company and AMC
Entertainment Inc. on November 29, 1990.
Exhibit 7. Letter of Credit issued by The Bank of New York in
favor of C&C.
Exhibit 8. Stock Sale Agreement dated March 4, 1991 by and
between AMC and C&C.
Exhibit 9. Option Agreement dated March 4, 1991 by and
between AMC and C&C.
Exhibit 10. Agreement of Limited Partnership of C&C Investment
Holdings, L.P. dated March 4, 1991 between Mr.
Cohen and Macuto.
Exhibit 11. Letter Agreement dated March 4, 1991 between Mr.
Cohen and AMC.
Exhibit 12. Joint filing Agreement dated March 7, 1991 between
Mr. Cohen and C&C.
Exhibit 13. Form of Customer Agreement with PaineWebber.
Exhibit 14. Form of Customer Agreement with Gruntal & Co.
Incorporated.
Exhibit 15. First Amendment to Option Agreement dated April
25, 1991 between AMC and C&C.
Exhibit 16. Deemed Effective Time Agreement dated April 25,
1991 among Exhibition Enterprises Partnership,
TPIE, CENI, AMC, AMCE, Durwood, Inc., Stanley H.
Durwood, Edward D. Durwood, the Company and C&C.
Exhibit 17. Amended Agreement of Limited Partnership of the
C&C Investment Holdings, L.P. dated as of April
22, 1992
Exhibit 18.* Letter Agreement between Stephen R. Cohen and
Macuto dated May 23, 1994.
Exhibit 19.* Indemnification Agreement between Stephen R. Cohen
and Cantor Fitzgerald & Co.
Exhibit 20.* Form of Customer Agreement with Cantor Fitzgerald
& Co.
___________________
* Filed with this Schedule 13D Amendment No. 6.
SIGNATURE
After reasonable inquiry and to the best of our
knowledge and belief, Stephen R. Cohen and C&C Investment
Holdings, L.P. certify that the information set forth in this
statement is true, complete and correct.
Dated:
/s/ Stephen R. Cohen
Stephen R. Cohen
C&C INVESTMENT HOLDINGS, L.P.
By: /s/ Stephen R. Cohen
Name: Stephen R. Cohen
Title: General Partner
INDEX TO EXHIBITS
Exhibit 1. Shareholder's Agreement dated November 12, 1987
between Stephen R. Cohen and American Multi-
Cinema, Inc.
Exhibit 2. Revocable Proxy dated November 12, 1987 from
American Multi-Cinema, Inc. in favor of Stephen R.
Cohen and Phillip Ean Cohen.
Exhibit 3. Revocable Proxy dated November 12, 1987 from
Stephen R. Cohen in favor of Stephen R. Cohen and
Phillip Ean Cohen.
Exhibit 4. Form of Customer Agreement with Bear, Stearns &
Co., Inc.
Exhibit 5. Form of Client Agreement with Shearson Lehman
Brothers Inc.
Exhibit 6. Press Release issued by the Company and AMC
Entertainment Inc. on November 29, 1990.
Exhibit 7. Letter of Credit issued by The Bank of New York in
favor of C&C.
Exhibit 8. Stock Sale Agreement dated March 4, 1991 by and
between AMC and C&C.
Exhibit 9. Option Agreement dated March 4, 1991 by and
between AMC and C&C.
Exhibit 10. Agreement of Limited Partnership of C&C Investment
Holdings, L.P. dated March 4, 1991 between Mr.
Cohen and Macuto.
Exhibit 11. Letter Agreement dated March 4, 1991 between Mr.
Cohen and AMC.
Exhibit 12. Joint filing Agreement dated March 7, 1991 between
Mr. Cohen and C&C.
Exhibit 13. Form of Customer Agreement with PaineWebber.
Exhibit 14. Form of Customer Agreement with Gruntal & Co.
Incorporated.
Exhibit 15. First Amendment to Option Agreement dated April
25, 1991 between AMC and C&C.
Exhibit 16. Deemed Effective Time Agreement dated April 25,
1991 among Exhibition Enterprises Partnership,
TPIE, CENI, AMC, AMCE, Durwood, Inc., Stanley H.
Durwood, Edward D. Durwood, the Company and C&C.
Exhibit 17. Amended Agreement of Limited Partnership of the
C&C Investment Holdings, L.P. dated as of April
22, 1992
Exhibit 18.* Letter Agreement between Stephen R. Cohen and
Macuto dated May 23, 1994.
Exhibit 19.* Indemnification Agreement between Stephen R. Cohen
and Cantor Fitzgerald & Co.
Exhibit 20.* Form of Customer Agreement with Cantor Fitzgerald
& Co.
___________________
* Filed with this Schedule 13D Amendment No. 6.
EXHIBIT 18
C&C INVESTMENT HOLDINGS, L.P.
PHILLIPS POINT PLAZA, EAST TOWER
777 SOUTH FLAGLER DRIVE, SUITE 909
WEST PALM BEACH, FLORIDA 33401
(407) 835-8888
(407) 835-1138 (Fax)
Inversiones Macuto S.A.
c/o Osvaldo Cisneros
Edificio Pepsi
4a Avenida Transversal Principal
Los Cortijos de Lourdes
Caracas, Venezuela
Gentlemen:
This letter agreement amends the Amended Agreement of
Limited Partnership of C&C Investment Holdings, L.P., dated as of
April 22, 1992 (the "Partnership Agreement") between Stephen R.
Cohen, a citizen of the United States (the "General Partner"),
and Inversiones Macuto S.A., a Panamanian corporation (the
"Special Limited Partner"). Capitalized terms not defined herein
shall have the meaning assigned to them in the Partnership
Agreement.
Notwithstanding any provisions of the Partnership
Agreement to the contrary, the General Partner is authorized in
his sole discretion and without the prior consent of or notice to
the Special Limited Partner (and without the requirement of
making any capital contributions to the Partnership), in the name
of and on behalf of the Partnership (a) to exercise the Option
and/or the Right of First Offer and to transfer, sell, assign, or
otherwise dispose of any or all Option Shares acquired (or to be
acquired) pursuant to the exercise by the Partnership of the
Option and/or the Right of First Offer and (b) to incur and pay
expenses in connection with the foregoing; provided, however, the
General Partner shall have no right to sell, assign, transfer,
exercise or leverage any shares of TPI Common Stock held by the
Custodian pursuant to Section 6.4 of the Partnership Agreement on
the date hereof (the "Existing Shares") or otherwise expose such
shares to Partnership liabilities; and provided further that no
additional capital contribution shall be required by the Special
Limited Partner. No shares acquired pursuant to the Option or
the Right of First Offer shall be required to be delivered to the
Custodian pursuant to Section 6.4 of the Partnership Agreement.
The General Partner shall have the right to make a temporary
capital contribution to the Partnership for the purpose of
exercising the Option and to pledge and leverage the Option
Shares on a short-term basis for the purpose of exercising the
Option. Any funds contributed by the General Partner to the
Partnership pursuant to the preceding sentence shall be repaid by
the Partnership to the General Partner (together with the General
Partner's interest paid on such contribution) immediately upon
receipt of payment for any Option Shares.
As promptly as practicable after the date hereof, the
General Partner and the Special Limited Partner shall take all
necessary actions to cause 990,000 of the Existing Shares to be
distributed to the Special Limited Partner and 10,000 of the
Existing Shares to be distributed to the General Partner.
Sections 3.2(a) and 6.2(e) of the Partnership Agreement are
hereby deleted.
Consistent with the terms of the Partnership Agreement
relating to the Option Shares, any profit or gain arising out of
the Option Shares will be allocated in accordance with the
following ratios: 1,000,000/1,475,144 to the General Partner
and 475,144/1,475,144 to the Special Limited Partner. Nothing
contained herein shall modify the Partnership Interests of the
General Partner and the Special Limited Partner contained in the
Partnership Agreement to the extent such Partnership Interests
relate to the Existing Shares.
Please indicate your agreement to the foregoing on the
enclosed copy of the Agreement and return it to the General
Partner whereupon it will constitute our agreement amending the
Partnership Agreement.
Very truly yours,
/s/ Stephen R. Cohen
Stephen R. Cohen
AGREED TO AND ACCEPTED BY:
INVERSIONES MACUTO S.A.
By: /s/ Osvaldo Cisneros
Osvaldo Cisneros
Dated: May 23, 1994
EXHIBIT 19
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the "Agreement") is
made this 24th day of May 1994, by and between Stephen R. Cohen
("Cohen"), the sole general partner of C&C Investment Holdings,
L.P., a Delaware limited partnership ("C&C"), and Cantor
Fitzgerald & Co., a New York general partnership and registered
broker-dealer ("CF & Co.").
WHEREAS, following the execution of this Agreement C&C
may be exercising an option to purchase 1,475,144 shares of
common stock, par value $.01 per share (the "Offered Shares"), of
TPI Enterprises, Inc., a New Jersey corporation (the "Company"),
pursuant to that certain Option Agreement, dated March 4, 1991
(the "Option Agreement"), between C&C and American Multi-Cinema,
Inc., a Missouri corporation ("AMC"); and
WHEREAS, the Offered Shares have been registered under
the Securities Act of 1933, as amended (the "Securities Act") by
the Company pursuant to a Registration Statement on Form S-3
(Registration No. 33-60034) (the "Registration Statement"); and
WHEREAS, Cohen and C&C desire to sell the Offered
Shares through CF & Co. as agent.
NOW, THEREFORE, in order to induce CF & Co. to serve as
agent in connection with the sale of the Offered Shares and in
consideration of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Cohen,
intending to be legally bound, does hereby agree as follows:
1. Indemnity.
a. Cohen agrees to indemnify, defend and hold
harmless CF & Co., its officers, directors and employees, and any
person who controls CF & Co. within the meaning of Section 15 of
the Securities Act or Section 20 of the Securities Exchange Act
of 1934, as amended (collectively, the "Indemnified Persons" and
separately, an "Indemnified Person"), from and against any loss,
expense, liability or claim (including the reasonable costs of
investigation) which, jointly or severally, any Indemnified
Person (i) may incur as a result of any untrue statement in any
representation or warranty or the breach of any covenant
contained in this Agreement, (ii) may incur as a result of the
failure of the Company to have qualified the Offered Securities
for sale under applicable state "Blue Sky" laws (other than in
the State of Florida); and (iii) may incur under the Act, the
Exchange Act, state law or otherwise insofar as such loss,
expense, liability or claim, directly or indirectly, arises out
of, relates to or is based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or in the Registration Statement as amended by any
post-effective amendment thereof by the Company) or in a
Prospectus (the term Prospectus for the purpose of this section
being deemed to include any Preliminary Prospectus, the
Prospectus and the Prospectus as amended or supplemented by the
Company) or directly or indirectly, arises out of, relates to or
is based upon any omission or alleged omission to state a
material fact required to be stated in either such Registration
Statement or Prospectus or necessary to make the statements made
therein not misleading; provided, however, that the indemnity
agreement contained in this section with respect to any
Prospectus or the Registration Statement shall not inure to the
benefit of CF & Co. or any person controlling CF & Co. to the
extent that any such losses arise out of CF & Co.'s failure to
send or give a copy of the final prospectus, as the same may be
then supplemented or amended, to the person asserting an untrue
statement or alleged untrue statement or omission or alleged
omission at or prior to the written confirmation of the sale of
Offered Shares to such person.
b. If any action is brought against an
Indemnified Person in respect of which indemnity may be sought
against Cohen pursuant to this section, such Indemnified Person
shall promptly notify Cohen in writing of the institution of such
action and Cohen shall assume the defense of such action,
including the employment of counsel and payment of reasonable
expenses. Such Indemnified Person shall have the right to employ
its or his own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of the
Indemnified Person unless the employment of such counsel shall
have been authorized in writing by Cohen in connection with the
defense of such action or Cohen shall not have employed counsel
to have charge of the defense of such action or such Indemnified
Person shall have reasonably concluded based on advice of counsel
that there may be defenses available to it or him which are
different from or additional to those available to C&C or Cohen
and such defenses conflict with the interests of C&C or Cohen (in
which case Cohen shall not have the right to direct the defense
of such action on behalf of the Indemnified Person), in any of
which events such reasonable fees and expenses shall be borne by
Cohen (it being understood, however, that Cohen shall not be
liable for the expenses of more than one separate counsel in any
one action or series of related actions in the same jurisdiction
for all the Indemnified Persons). Anything in this section to
the contrary notwithstanding, Cohen shall not be liable for any
settlement of a claim or action effected without his written
consent.
c. If the indemnification provided for in this
Section 1 is unavailable to an Indemnified Person under
subsections (a) and (b) hereof in respect of any losses,
expenses, liabilities or claims referred to therein, then Cohen,
in lieu of indemnifying such Indemnified Person, shall contribute
to the amount paid or payable by such Indemnified Person as a
result of such losses, expenses, liabilities or claims (i) in
such proportion as is appropriate to reflect the relative
benefits received by C&C on the one hand and CF & Co. on the
other hand from the sale of the Offered Shares or (ii) if the
allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above
but also the relative fault of the Company, C&C and Cohen on the
one hand and of CF & Co. on the other in connection with the
statements or omissions which resulted in such losses, expenses,
liabilities or claims, as well as any other relevant equitable
considerations. The relative benefits received by C&C on the one
hand and CF & Co. on the other shall be deemed to be in the same
proportion as the total proceeds from the sale of the Offered
Shares received by C&C bear to the total commissions paid by C&C
to CF & Co. The amount paid or payable by a party as a result of
the losses, expenses, liabilities and claims referred to above
shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party in connection with
investigating or defending any claim or action.
d. Cohen and CF & Co. agree that it would not be
just and equitable if contribution pursuant to this Section 1
were determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable
considerations referred to in subsection (c) above.
e. The indemnity and contribution agreements
contained in this Section 1 shall remain in full force and effect
regardless of any investigation made by or on behalf of any
Indemnified Person. Each Indemnified Person shall promptly
notify Cohen of the commencement of any litigation or proceeding
against it in connection with the sale of the Offered Shares or
in connection with the Registration Statement or the Prospectus.
f. Simultaneously with any notice given by an
Indemnified Person to Cohen under Section 1(a) hereunder, such
Indemnified Person shall also notify the Company and request
indemnification and a defense from the Company. Nothing
contained herein shall require an Indemnified Person to take any
other action including, without limitation, the institution of
legal proceedings against the Company, as a condition to
obtaining indemnification from Cohen hereunder or otherwise delay
such Indemnified Person's rights against Cohen hereunder, but the
Indemnified Person shall cooperate with Cohen and the Company if
the Company does take action to indemnify and defend the
Indemnified Person. Cohen shall be subrogated to any rights of
the Indemnified Person against the Company if the Company shall
refuse to defend or indemnify such Indemnified Person.
2. Representations. Cohen hereby represents and
warrants that: he has the power, authority and legal right to
make, deliver and perform this Agreement; this Agreement has been
duly executed and delivered by him and constitutes his legal,
valid and binding obligation enforceable in accordance with its
term; the execution, delivery and performance of this Agreement
will not violate any law, rule, regulation, judgment, order or
decree binding upon him or any agreement, instrument or
understanding to which he is a party or by which he is bound; no
consent of any other person and no consent, license, permit,
approval or authorization of, exemption by, notice or report to,
or registration, filing or department or agency is required in
connection with the execution, delivery and performance by him,
or the validity or enforceability against him, of this Agreement;
and CF & Co. as agent for C&C in connection with the Offered
Shares will not be participating in the direct or indirect
underwriting of any distribution or public offering but will be
acting as a broker in the ordinary course of its business.
3. Survival. All representations, warranties,
covenants and agreements made herein shall survive the execution,
delivery and termination of this Agreement and the consummation
of the transactions contemplated by this Agreement.
4. Entire Agreement; Amendment. This Agreement
constitutes the entire agreement between the parties hereto
pertaining to the subject matter hereof and supersedes all prior
or contemporaneous written or verbal agreements, understandings
and negotiations in connection herewith. This Agreement may be
amended, modified, terminated or cancelled only by the written
agreement of the parties hereto. Except as set forth herein, the
parties acknowledge that no representation or warranty has been
made by any person of any nature whatsoever.
5. Notices. Any notices or other communications
required or permitted hereunder or otherwise in connection
herewith shall be in writing and shall be deemed to have been
duly given and received on the date of delivery if delivered in
person or by overnight express delivery or when transmitted by
facsimile transmission, or three business days after dispatch by
registered or certified mail, postage prepaid, addressed as
follows (or at such other address for a party as shall be
specified by like notice, which notice shall not be deemed to
have been given until received by the addressee):
a. If to Cohen: Stephen R. Cohen
C&C Investment Holdings, L.P.
Phillips Point
East Tower, Suite 909
777 South Flagler Drive
West Palm Beach, FL 33401
FAX: (407) 835-1138
with a copy
to: Skadden, Arps, Slate, Meagher &
Flom
1440 New York Avenue, N.W.
Washington, DC 20005
Attention: Ronald C. Barusch, Esq.
b. If to CF &
Co.: Cantor, Fitzgerald & Co.
One World Trade Center
New York, New York 10048
FAX: (212) 432-2425
Attention: Peter DaPuzzo
with a copy
to: Stein, Zauderer, Ellenhorn,
Frischer & Sharp
45 Rockefeller Plaza
New York, New York 10111
FAX: (212) 956-4068
Attention: Richard T. Sharp, Esq.
6. Assignment. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors and
permitted assigns. This Agreement shall not be assigned by any
party without the prior written consent of the other party.
7. Waiver. The application of any provision of this
Agreement may be waived by any party or parties entitled to the
benefit thereof; provided, however, that no delay or failure on
the part of any person in exercising any right hereunder, and no
waiver or partial or single exercise thereof, shall constitute a
waiver of any other rights under this Agreement.
8. Severability. In the event that any one or more
of the provisions contained herein or any application thereof
shall be deemed invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining
provisions of this Agreement or any application thereof shall not
in any way be affected or impaired thereby.
9. Headings. The headings to the sections of this
Agreement are for convenience only and in no way define, limit or
describe the scope or intent of this Agreement or any party
hereto, nor in any other way affect this Agreement or any part
hereof.
10. Miscellaneous. Whenever the context shall
require, the use of any gender shall include all genders, and the
use of any singular shall include the plural, and vice versa.
11. Counterparts. This Agreement may be executed in
several counterparts, each of which shall be an original and all
of which shall constitute but one and the same Agreement.
12. Jurisdiction; Venue. Cohen irrevocably submits to
the exclusive jurisdiction of (a) the Supreme Court of the State
of New York, New York County, and (b) the United States District
Court for the Southern District of New York, for purposes of any
suit, action or other proceeding arising out of this Agreement.
Cohen further agrees that service of any process, summons, notice
or document by U.S. registered mail to his address set forth
above or such other address as shall be provided in writing shall
be effective service or process for any action, suit or
proceeding in New York with respect to any matters to which he
has submitted to jurisdiction as set forth above in the
immediately preceding sentence. Cohen irrevocably and
unconditionally waives any objection to the laying of venue of
any action, suit or proceeding arising out of this Agreement or
the transactions contemplated herein in (a) the Supreme Court of
the State of New York, New York County, or (b) the United States
District Court for the Southern District of New York, and hereby
further irrevocably and unconditionally waives and agrees not to
plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an
inconvenient forum.
13. Governing Law. This Agreement shall be governed
by and construed in accordance with the internal laws of the
State of New York applicable to agreements made and to be
performed entirely within such State without regard to the
conflicts of law principles of such State.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first written above.
/s/ Stephen R. Cohen
STEPHEN R. COHEN
CANTOR FITZGERALD & CO.
By /s/ David T. Weiss
Name: David T. Weiss
Title: Vice President
EXHIBIT 20
MARGIN ACCOUNT
APPLICATION AND AGREEMENT
Cantor Fitzgerald & Co.
1840 Century Park East
Los Angeles, CA 90067
(310) 282-6300
Title of Account: Account Number:
C & C Investment Holdings, L.P.
This agreement sets forth the respective rights and
obligations in connection with Cantor Fitzgerald & Co.'s
("CF&Co.") accepting a margin account or accounts for the
undersigned ("Customer"). CF&Co. and Customer hereby agree to
the following with respect to any of Customer's accounts with
CF&Co. for the purchase and sale of securities.
1. Customer agrees that all securities, other property
(including any obligations, matured or unmatured, of CF&Co. or
its affiliates to Customer) and proceeds which CF&Co. or any of
its affiliates may hold for customer or which are due to Customer
(either individually or jointly with others) and the proceeds
thereof shall be subject to, and Customer so grants to CF&Co. and
its affiliates, a general lien, security interest and right of
setoff for the discharge of all Customer's obligations (whether
matured or unmatured) to CF&Co. or any of its affiliates. CF&Co.
and its affiliates shall have all of the rights of secured
parties with respect to all such securities, other property and
proceeds. Insofar as a security interest is granted to CF&Co. in
any securities, other property and proceeds in the possession of
any affiliate of CF&Co., such affiliate shall act for itself and
as agent for CF&Co. Customer hereby authorizes CF&Co. to
indicate, by book entry or any other means that CF&Co. or any
affiliate may select in its discretion, CF&Co.'s security
interest in any such securities, other property and proceeds.
CF&Co. may in its discretion and without notice to Customer,
deduct any amounts which may become due hereunder from Customer's
account and apply or transfer any of Customer's securities, other
property and proceeds interchangeably between any of Customer's
accounts.
2. Transactions shall be in accordance with the rules and
customs of the exchange or market (and its clearing house, if
any) where the transactions are executed and in conformity with
applicable law and regulations of governmental authorities and
future amendments or supplements thereto.
3. Customer agrees to deposit or maintain margin or collateral
for Customer's account in such amounts as CF&Co. may in its sole
discretion require from time to time. Additional collateral must
be received by CF&Co. within one business day of a demand.
Customer agrees that CF&Co. may determine on any reasonable basis
the value of property deposited, maintained or in the custody or
control of CF&Co. or any affiliate, as margin or collateral with
CF&Co. Customer agrees to pay interest charges which are imposed,
in accordance with CF&Co.'s usual custom, with respect to
customer's account and to pay on demand any debit balance owing
with respect to Customer's account. Customer agrees to pay
promptly any custody or other fees which may be imposed by CF&Co.
with respect to the account.
4. Customer agrees to designate all sell orders for securities
as either "long" or "short." The designation of a sale of a
security as "long" constitutes a certification that the
securities to be sold are owned by Customer and, if such
securities are not in CF&Co.'s possession, the placing of such
order shall constitute a warranty by Customer that Customer shall
deliver such securities to you on or before settlement date.
5. In the event of default of any obligation to CF&Co. or any
of its affiliates, or if for any reason CF&Co. may deem it
advisable for its or their protection, CF&Co may, without notice
or demand to Customer, and at such time and place as CF&Co. may
reasonably determine, sell or otherwise dispose of any securities
or other property which CF&Co. or any of its affiliates may hold
for Customer or which is due to Customer (either individually or
jointly with others) and apply the proceeds to the discharge of
the obligation, or buy in or borrow any securities or other
property sold for Customer's account but undelivered by Customer,
and cancel any outstanding orders, liquidate any open
transactions, and take such other action as CF&Co. deems
appropriate. Customer shall remain liable for any deficiency and
shall promptly reimburse CF&Co. for any loss or expense incurred
thereby, including losses sustained by reason of CF&Co.'s
inability to borrow any securities or other property sold for
Customer's account.
6. Reports of the execution of orders and statements of
Customer's account shall be conclusive if not objected to by
Customer in writing, the former within two days, and the latter
within ten days after forwarding by CF&Co. to Customer by mail or
otherwise.
7. Customer agrees that securities and other property in
Customer's account may be carried in CF&Co. general loans and may
be pledged, hypothecated or otherwise used or disposed separately
or in common with other securities and any other property for the
sum due to CF&Co. thereon or for a greater sum and without
retaining in your possession and control for delivery of a like
amount of similar securities or other property. Customer
understands that when CF&Co. holds on Customers's behalf bonds or
preferred stocks which are callable in part by the issuer, such
securities will be subject to CF&Co.'s impartial lottery
allocation system in which the probability of Customer's
securities being selected as called is proportional to the
holdings of all customers of such securities held in bulk by or
for CF&Co. Customer further understands that CF&Co. will
withdraw such securities from any depository prior to the first
day on which such securities may be called unless such depository
has adopted an impartial lottery system which is applicable to
all participants. Customer may withdraw uncalled securities
prior to a partial call subject to compliance with applicable
margin requirements and the terms of any agreements between
CF&Co. and Customer. CF&Co. is authorized to withdraw securities
sold or otherwise disposed of, and to credit Customer's account
with the proceeds thereof or make such other disposition thereof
as Customer may direct. CF&Co. is further authorized to collect
all income and other payments which may become due on Customer's
securities, to surrender for payment maturing obligations and
those called for redemption and to exchange certificates in
temporary form for like certificates in definitive form, or, if
the par value of any shares is changed, to effect the exchange
for new certificates. It is understood and agreed by Customer
that although CF&Co. will use reasonable efforts to effect the
authorization set forth in the preceding sentence, CF&Co. will
incur no liability for failure to effect the same.
8. Customer and CF&Co. agree that the accounts maintained
hereunder may be terminated by CF&Co. or Customer at any time
effective on the giving of notice of such termination to Customer
or to CF&Co., as the case may be. On any such termination, the
provisions of this agreement shall nevertheless remain in effect
with respect to all securities and other property then held in
such accounts, all transactions previously executed by CF&Co.
hereunder and all orders from Customer previously given to and
accepted by CF&Co. hereunder and not otherwise cancelled pursuant
to the terms of this agreement. Customer agrees that CF&Co. may,
in its sole discretion and without prior notice to Customer,
refuse to accept any order from Customer in connection with the
purchase or sale of securities by giving notice of such refusal
to Customer as soon as practicable after CF&Co. is given such
order.
9. CF&Co.'s rights hereunder are cumulative, and are in
addition to any other rights CF&Co. may have. Customer agrees to
execute such additional instruments, including without limitation
UCC-1 financing statements, and take such other actions as CF&Co.
may require to ensure the perfection of its security interest in
property held by CF&Co. or any of its affiliates for Customer, as
margin or otherwise. In addition, Customer hereby authorized
CF&Co. to provide this agreement to others as it sees fit, and to
act on behalf of its affiliates with respect to Customer's
property or obligations when CF&Co. in its sole discretion shall
so determine. Customer also hereby authorizes CF&Co.'s
affiliates to deliver to CF&Co. any information relating to any
securities or other property in which Customer has an interest
and that is held by, in the possession of or under the control of
any of them (or any proceeds thereof), including without
limitation delivery of confirmations or other notices of any
transaction relating to any such security, other property or
proceeds or the crediting thereof to, or the debiting thereof
from any account maintained in the name or for the benefit of
Customer by any of them.
10. This agreement and its enforcement shall be governed by the
laws of the State of New York without regard to principles of
conflicts of laws, and its provisions shall cover individually
and collectively all accounts which Customer may maintain with
CF&Co. CUSTOMER HEREBY WAIVES PERSONAL SERVICE OF PROCESS AND
SUBMITS TO SERVICE OF PROCESS BY MAIL TO THE ADDRESS LISTED
BELOW. This agreement is binding upon and inures to the benefit
of CF&Co., Customer, and our respective legal representatives,
successors and assigns. No waiver of any provision of this
agreement shall be deemed a waiver of any other provision, nor a
continuing waiver of the provision or provisions so waived. All
waivers must be in writing. The invalidity or unenforceability
of any particular provision of this agreement shall not affect
the other provisions and this agreement shall be construed in all
respects as if such invalid or unenforceable provisions were
omitted. In the event that a court of competent jurisdiction
shall determine that any provision set forth in this agreement is
impermissibly broad in scope, or is in the nature of a penalty,
then the parties intend that such court should limit the scope of
such provision to the extent, and only to the extent, necessary
to render such covenant reasonable and enforceable, and enforce
the covenant as so limited.
11. (a) The parties are waiving their right to seek remedies in
court, including the right to a jury trial.
(b) Arbitration is final and binding on the parties.
(c) Pre-arbitration discovery is generally more limited
than and different from court proceedings.
(d) The arbitrators' award is not required to include
factual findings or legal reasoning and any party's right to
appeal or to seek modification of rulings by the arbitrators is
strictly limited.
(e) The panel of arbitrators will typically include a
minority of arbitrators who were or are affiliated with the
securities industry.
Any controversy between CF&Co. or any of its affiliates or any of
its or their partners, officers, directors, or employees on the
one hand, and Customer on the other hand, arising out of or
relating to this Agreement or the accounts established hereunder,
shall be settled by arbitration, in accordance with the rules
then obtaining of any exchange of which CF&Co. is a member or the
National Association of Securities Dealers, Inc., as Customer may
elect. If Customer does not make such election by registered
mail addressed to CF&Co. at its main office within ten days after
receipt of notification from CF&Co. requesting such election,
then Customer authorizes CF&Co. to make such election on behalf
of Customer. Any Arbitration hereunder shall be before at least
three arbitrators and the award of the arbitrators, or of a
majority of them, shall be final, and judgment upon the award
rendered may be entered in any court, state or federal, having
jurisdiction.
No person shall bring a putative or certified class action to
arbitration, nor seek to enforce any pre-dispute arbitration
agreement against any person either who has initiated in court a
putative class action, or who is a member of a putative class who
has not opted out of the class with respect to any claims
encompassed by the putative class action until: (i) the class
certification is denied; (ii) the class is decertified; or
(iii) the customer is excluded from the class by the court. Such
forbearance to enforce an agreement to arbitrate shall not
constitute an waiver of any rights under this agreement except to
the extent stated herein.
12. Customer represents that no one except the Customer has an
interest in Customer's account unless such interest is revealed
in the title of such account and in any such case, Customer has
the interest indicated in such title.
13. Customer understands that CF&Co. may be required to disclose
to securities issuers the name, address and securities positions
with respect to securities held in the subject account in
CF&Co.'s or CF&Co.'s nominee's name unless CF&Co. is notified
that Customer objects.
Customer hereby notifies CF&Co. that Customer wishes such
disclosure to be made. Customer should strike out the preceding
paragraph if Customer does not consent to such disclosure.
14. For the purposes hereof, an "affiliate" of CF&Co. means any
entity controlled, directly or indirectly, by CF&Co., any entity
that controls, directly or indirectly, CF&Co. or any entity under
direct or indirect common control with CF&Co., where the meaning
of the term "control" includes, without limitation, ownership of
a majority of the voting power or the ability to direct the
affairs of, as the case may be, CF&Co. or the entity concerned.
15. By signing below, Customer acknowledges receipt of a copy of
this Margin Account Agreement.
A PREDISPUTE ARBITRATION CLAUSE IS CONTAINED IN PARAGRAPH 11
HEREOF.
Name of Partnership Address
By (Signature of General Additional Signature
Partner) (if necessary)
Please Print Name and Title Please Print Name and Title
Date Date
CANTOR FITZGERALD & CO.
By:
