SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
________________________
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Amendment No. 5
TPI ENTERPRISES, INC.
(Name of Issuer)
Common Stock, Par Value $.01 Per Share
(Title of class of securities)
872623-10-3
(CUSIP Number)
Osvaldo Cisneros With copy to: Richard A. Goldberg, Esq.
Aptd. 70519 Los Ruices Shereff, Friedman,
Caracus, Venezuela Hoffman and Goodman
Tel. No.: (011)-(582)-203-6100 919 Third Avenue
New York, New York 10022
Tel. No.: (212) 758-9500
(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 report 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)
(Continued on following pages)
(Page 1 of 25 Pages)
<PAGE>
CUSIP No. 872623-10-3 Page 2 of 25 Pages
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
OSVALDO CISNEROS
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)[ ]
(b)[x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
PF/OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM (2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Venezuela
NUMBER OF 7 SOLE VOTING POWER
SHARES 4,000
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH 2,575,144 (See Items 5 & 6)
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH 4,000
10 SHARED DISPOSITIVE POWER
2,575,144 (See Items 5 & 6)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,579,144 (See Items 5 & 6)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN BOX (11) EXCLUDES CERTAIN
SHARES* [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.71%
14 TYPE OF REPORTING PERSON*
IN
2
<PAGE>
CUSIP No. 872623-10-3 Page 3 of 25 Pages
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Balanchine Corporation
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
PF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM (2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Turks & Caicos Islands
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH 1,500,000 (See Item 5)
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH 10 SHARED DISPOSITIVE POWER
1,500,000 (See Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,500,000 (See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN BOX (11) EXCLUDES CERTAIN
SHARES* [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.39%
14 TYPE OF REPORTING PERSON*
CO
3
<PAGE>
CUSIP No. 872623-10-3 Page 4 of 25 Pages
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Inversiones Macuto, S.A.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
PF/OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM (2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Panama
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH 1,075,144
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH 10 SHARED DISPOSITIVE POWER
1,075,144
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)
5.29%
14 TYPE OF REPORTING PERSON*
CO
4
<PAGE>
This Statement amends and restates, as amended, the Schedule
13D filed by Osvaldo Cisneros, Inversiones Macuto, S.A. and Balanchine
Corporation dated March 14, 1991 (the "Original Schedule 13D"), as amended by
the Schedule 13D Amendment No. 1 dated May 3, 1991 ("Amendment No. 1"), the
Schedule 13D Amendment No. 2 dated April 6, 1992 ("Amendment No. 2"), the
Schedule 13D Amendment No. 3 dated April 22, 1992 ("Amendment No. 3") and the
Schedule 13D Amendment No. 4 dated February 3, 1993 ("Amendment No. 4" and,
together with the Original Schedule 13D, Amendment No. 1, Amendment No. 2 and
Amendment No. 3, the "Schedule 13D"), as set forth in this Amendment No. 5.
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) This Statement is filed jointly by (i) Mr. Osvaldo
Cisneros, (ii) Inversiones Macuto, S.A., ("Macuto"), and (iii) Balanchine
Corporation ("Balanchine"). The foregoing persons are sometimes referred to
herein as the "Reporting Persons".
(b) The principal business address of each of the Reporting
Persons is set forth below opposite their respective names:
5
<PAGE>
Name Principal Business Address
Osvaldo Cisneros Aptd. 70519 Los Ruices
Caracas, Venezuela
Inversiones Macuto, S.A. Calle 53 Con Avenida Lewis
El Dorado, Panama
Balanchine Corporation P.O. Box 7788
Nassau, Bahamas
(c) The principal business of Mr. Cisneros is President of
Organizacion Pepsi Cola and Hit of Venezuela. Mr. Cisneros is a director of
the Company. Each of Macuto and Balanchine were formed for the purpose of
investing in securities of the Company. Macuto is the special limited partner
of C&C Investment Holdings, L.P. ("C&C"), a Delaware limited partnership, of
which Stephen R. Cohen ("Mr. Cohen") is the sole general partner. Mr. Cohen is
also Chairman of the Board of the Company. Mr. Cohen has filed a separate
Statement Schedule 13D (Amendment No. 6 dated March 24, 1994) with respect to
the transactions described herein. Set forth on Schedule A hereto and
incorporated herein by reference are the name, principal business address and
citizenship or place of organization of each officer, director and controlling
shareholder of Macuto and Balanchine.
(d) - (e) During the past five years, none of the Reporting
Persons nor any person set forth on Schedule A hereto has been convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors).
During the past five years, none of the Reporting Persons nor any person set
forth on Schedule A hereto 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.
(f) Mr. Cisneros is a citizen of Venezuela. Macuto is a
corporation organized under the laws of Panama and Balanchine is a corporation
organized under the laws of Turks & Caicos Islands.
Item 3. Source and Amount of Funds or Other Consideration.
Item 3 of the Schedule 13D is hereby amended and restated to
read in its entirety as follows:
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 (the "Existing Shares")
for a purchase price of $5.5 million on April 25, 1991. C&C obtained the $5.5
6
<PAGE>
million to purchase the 1,000,000 Existing 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 was attached as Exhibit 1 to the Original 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 hereinafter
defined), 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).
See Item 6 of this Statement for a description of certain
additional terms of the Stock Sale Agreement, the Option Agreement and the C&C
Limited Partnership Agreement (which instruments were attached as exhibits to
the Original Schedule 13D).
Balanchine acquired 1,500,000 shares for an aggregate purchase
price of approximately $9.5 million. Balanchine purchased such Shares with
funds provided by Mr. Cisneros.
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 funds originally advanced to Mr. Cohen by Bear, Stearns &
Co., Inc. and Shearson Lehman
7
<PAGE>
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 500,000 Shares, is $1,287,415, all of which has been
advanced by Smith Barney (the "Smith Barney Advance").
Item 4. Purpose of Transaction.
Item 4 is hereby amended and restated in its entirety as
follows:
Each of the Reporting Persons purchased their respective Shares
for investment purposes. Each of the Reporting Persons intends to review their
investment from time to time and reserves the right to maintain their
respective holdings at current levels without further action or, subject (in
the case of Shares to be held by C&C), to restrictions in the C&C Limited
Partnership Agreement, to sell all or a portion of their holdings or purchase
additional Shares in the open market or privately negotiated transactions or
otherwise.
Mr. Cisneros is currently serving as a director of the Company.
Item 5. Interest in Securities of the Issuer.
(a) Items 5(a) and 5(b) of the Schedule 13D are hereby amended
and restated in their entirety as follows:
Macuto may be deemed to have shared power to (i) vote the
1,000,000 Shares purchased by C&C from AMC on April 25, 1991 pursuant to the
Stock Sale Agreement and the 75,144 Shares subject to the Option and (ii)
dispose of the 1,000,000 Shares and the 75,144 Shares subject to the Option.
Accordingly, Macuto may be deemed to beneficially own an aggregate of 1,075,144
Shares (approximately 5.29% of the outstanding Shares).
Mr. Cisneros, as the sole shareholder of Macuto, has the power
to direct the voting and disposition of investments of Macuto, and accordingly,
may be deemed to beneficially own any Shares owned by Macuto by virtue of Rule
13d-3. In addition, Mr. Cisneros will have the sole power to vote and dispose
of 4,000 Shares that Mr. Cisneros has the right to acquire through presently
exercisable options which were granted to Mr. Cisneros by the Company for his
services as director.
Balanchine owns 1,500,000 Shares representing approximately
7.39% of the Company's outstanding Shares. Balanchine is an entity formed by
Coutts & Co. ("Coutts"), a Bahamian bank (formerly NatWest International Trust
Corporation). Coutts indirectly holds approximately 99% of the capital stock
of Balanchine pursuant to a nominee arrangement with Mr. Cisneros. Pursuant to
such arrangement, Mr. Cisneros has the right to provide instructions to Coutts
as to matters relating to voting, disposition and receipt of dividends with
respect to these Shares. Accordingly, by reason of the provisions of Rule 13d-
3, Mr. Cisneros may be deemed to be the beneficial owner of the Shares owned by
Balanchine.
8
<PAGE>
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, Macuto will beneficially own
and have sole voting and dispositive power with respect to 990,000 Shares.
Item 5(c) of the Schedule 13D is hereby amended and restated in
its entirety as follows:
(c) On April 25, 1991, pursuant to the Stock Sale
Agreement, C&C purchased 1,000,000 Shares for a purchase price of $5.50 per
Share and the Option to purchase up to 1,475,144 Shares, on the terms set forth
in the Option Agreement, became effective. See Item 6.
The information contained in the following two paragraphs was
taken from Amendment No. 6 to the Schedule 13D filed by Mr. Cohen dated May 24,
1994.
Mr. Cohen is the general partner of C&C. The present principal
occupation or employment of Mr. Cohen is Chairman of the Board of the Company.
The principal office and business address of Mr. Cohen is Phillips Point, East
Tower, Suite 909, 777 South Flagler Drive, West Palm Beach, Florida 33401. Mr.
Cohen is a citizen of the United States.
During the past five years, Mr. Cohen has not been convicted in
a criminal proceeding (excluding traffic violations or similar misdemeanors).
During the past five years, Mr. Cohen has not 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.
Ella Cisneros, the wife of Mr. Cisneros, beneficially owns
243,500 Shares (approximately 1.20% of the outstanding Shares). The Shares
beneficially owned by Mrs. Cisneros were purchased by entities controlled by
her. Information concerning the identity and background of Mrs. Cisneros and
the entities she controls, which have executed transactions in Shares, is set
forth in Schedule B hereto. Mrs. Cisneros maintains the sole power to vote,
dispose, or direct the disposition of the Shares beneficially owned by her.
Mr. Cisneros exercises no voting or dispositive power over such Shares and
exercises no control over the entities which hold such Shares. Accordingly,
Mr. Cisneros disclaims beneficial ownership with respect to all Shares
beneficially owned by Mrs. Cisneros.
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
9
<PAGE>
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 2 to the Original 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.
10
<PAGE>
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 was attached as Exhibit 3 to
the Original 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.
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 was attached as Exhibit 4 to the
Original 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,
11
<PAGE>
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 was attached
as Exhibit 7 to the Original 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 8
(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".
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 Macuto and Mr. Cohen are 99% and 1%,
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 was 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
12
<PAGE>
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 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
13
<PAGE>
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 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. Mr. Cohen and Macuto have entered into an agreement dated May 31,
1994, a copy of which is attached hereto as Exhibit 9. Said agreement provides
that the profit or gain arising out of the sale of 1,400,000 Option Shares, net
of all costs, fees and expenses relating to the exercise of the Option and the
sale of such Option Shares shall be distributed in accordance with the
following ratios: 1,000,000/1,474,144 to Mr. Cohen, as general partner and
475,144/1,475,144 to Macuto as the special limited partner.
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 was attached as
Exhibit 6 to Amendment No. 1 to the Original Schedule 13D and the 1994 Letter
Agreement, a copy of which is attached as Exhibit 8 to the Schedule 13D.
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 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 Letter of Credit issued by The Bank of New York in
favor of C&C.
Exhibit 2 Stock Sale Agreement dated March 4, 1991 by and between
AMC and C&C.
Exhibit 3 Option Agreement dated March 4, 1991 by and between AMC
and C&C.
Exhibit 4 Agreement of Limited Partnership of C&C Investment
Holdings, L.P. dated March 4, 1991 between Mr. Cohen
and Macuto.
14
<PAGE>
Exhibit 5 Joint Filing Agreement dated March 12, 1991 among
Mr. Cisneros, Macuto and Balanchine.
Exhibit 6 First Amendment to Option Agreement, dated April 25,
1991 between AMC and C&C.
Exhibit 7 Amended Agreement of Limited Partnership of C&C
Investment Holdings, L.P. dated as of April 22, 1992.
Exhibit 8* Letter Agreement between Stephen R. Cohen and Macuto
dated May 23, 1994.
Exhibit 9* Agreement between Stephen R. Cohen and Macuto dated
May 31, 1994.
_________________
* Filed with this Schedule 13D Amendment No. 5
15
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of our knowledge and
belief, Osvaldo Cisneros and Balanchine Corporation certify that the
information set forth in this statement is true, complete and correct.
Dated: June 2, 1994
/s/ Osvaldo Cisneros
Osvaldo Cisneros
INVERSIONES MACUTO, S.A.
By: /s/ Osvaldo Cisneros
Name: Osvaldo Cisneros
Title: Attorney Ad-Hoc
BALANCHINE CORPORATION
By: /s/ Esther Vincent
Director-Amerex S.A.
By: /s/ Carolyn Miller
Director-Baden S.A.
16
<PAGE>
SCHEDULE A
DIRECTORS AND EXECUTIVE OFFICERS
Set forth below are the names and citizenship or place of
organization of each director and officer and principal shareholder of
Balanchine Corporation. Unless otherwise indicated, each such person's
principal business address is P.O. Box 7788, Nassau, Bahamas.
Citizenship/Place of
Name Title Organization
Amerex S.A.* Director Costa Rica
Baden S.A.* Director Costa Rica
Mrs. D. Haines President Bahamas
Miss L.C. Daniels Vice President Bahamas
Mr. J.D. Graham Vice President Canada
Mrs. N. Hampartsoumian Vice President Canada
Mr. S. L. Humes Vice President Bahamas
Mr. T. K. Marr Vice President Canada
Mr. D. S. Martineau Vice President Canada
Mrs. L. Moss Vice President Bahamas
Ms. S.M. Sewell-Jones Vice President U.K.
Mrs. E. E. Vincent Vice President Bahamas
Mrs. M. E. Winter Vice President Bahamas
Mrs. C.A. Miller Secretary Bahamas
Mr. V.R. Prosa Treasurer Bahamas
Mrs. C. L. Baxter Assistant Secretary Bahamas
Mr. L.M. Cox Assistant Secretary Bahamas
Miss P.H.A. Creary Assistant Secretary Bahamas
Ms. C.M. Gardiner Assistant Secretary Bahamas
Mrs. B. A. Hale Assistant Secretary Bahamas
Mrs. P.S. Lambrigger Assistant Secretary Bahamas
Mrs. D.G. Moss Assistant Secretary Bahamas
Miss S. Sands Assistant Secretary Bahamas
Miss J.M. Shannon Assistant Secretary Bahamas
Mr. P.A. Webster Assistant Secretary Canada
Each of the foregoing individuals is an employee of Coutts & Co. (Bahamas)
Limited, successor Company to NatWest International Trust Corporation (Bahamas)
Limited.
Shareholders of Balanchine
Maridi Investment Company Limited*
Adansonia Investments*
* Amerex S.A. and Baden S.A. are nominee companies of Coutts &
Co. (Bahamas) Limited who serve as Directors of Balanchine. Maridi and
Adansonia are nominee companies of Coutts & Co. (Bahamas) Limited who own all
of the shares of Balanchine Corporation.
17
<PAGE>
Set forth below are the names, present principal occupation and
citizenship of the directors and officers and controlling shareholder of
Inversiones Macuto, S.A. unless otherwise indicated, the business address of
each person is Calle 53 Con Avenida Lewis, El Dorado, Panama, Republica de
Panama.
Principal
Name Title Occupation Citizenship
Osvaldo Cisneros* Attorney President of Venezuelan
Aptd. 70519 Ad-Hoc Organization Pepsi
Los Ruices Cola and Hit of
Caracas, Venezuela Venezuela
Lorenzo Marquirez Director - Secretary Attorney Panamanian
Carlos Cordero Director - President Financial Advisor Panamanian
Ernesto Navarro Diaz Director - Treasurer Sales Department Panamanian
- Televisora
Nacional, C.A.
_______________
* Controlling shareholder
18
<PAGE>
SCHEDULE B
The following information concerns the identity and background
of Mrs. Cisneros and the entities she controls which have held the Shares:
Mrs. Cisneros is a citizen of Venezuela. Mrs. Cisneros is the
sole shareholder and President of Karant Investments, N.V. ("Karant"), a
corporation organized under the laws of the Netherlands Antilles.
Mrs. Cisneros' principal business address is Centro Comercial
Paseo las Mercedes, Piso 2, Ofc. 1-2, Nivel Verde, Caracas, Venezuela. Mrs.
Cisneros is not principally engaged in any commercial pursuit. However, she is
the founder and President of Together Foundations, a not-for-profit, non-
governmental organization affiliated with the United Nations Department of
Public Information which engages in international environmental pursuits.
The principal business address of Karant is Centro Comercial
Paseo Las Mercedes, Piso 2, Ofc. 1-2, Nivel Verde, Caracas, Venezuela. Set
forth in Schedule C hereto and incorporated herein by reference are the names,
principal businesses, principal business addresses and citizenships or places
of organization of each officer, director and controlling shareholder of
Karant.
19
<PAGE>
SCHEDULE C
MANAGING DIRECTORS, AGENT AND CONTROLLING
SHAREHOLDER OF KARANT INVESTMENTS, N.V.
Principal Business:
Investment
Name/Title/Citizenship of Principal
Managing Directors and Agent Business Address
Ella Cisneros Centro Comercial Paseo Las Mercedes
Managing Director Piso 2, Ofc. 1-2 Nivel Verde
Venezuela Caracas, Venezuela
Corporate Agents, N.V. Pietermaai 23, P.O. Box 6
Managing Director Caracao, Netherlands Antilles
Netherlands Antilles
Robert Zangrillo 25691 LaLanne Court
Agent Los Altos, California 94022
U.S.A.
Controlling Shareholder
Ella Cisneros
20
<PAGE>
INDEX TO EXHIBITS
Exhibit 1 Letter of Credit issued by The Bank of New York in
favor of C&C.
Exhibit 2 Stock Sale Agreement dated March 4, 1991 by and between
AMC and C&C.
Exhibit 3 Option Agreement dated March 4, 1991 by and between AMC
and C&C.
Exhibit 4 Agreement of Limited Partnership of C&C Investment
Holdings, L.P. dated March 4, 1991 between Mr. Cohen
and Macuto.
Exhibit 5 Joint Filing Agreement dated March 12, 1991 among
Mr. Cisneros, Macuto and Balanchine.
Exhibit 6 First Amendment to Option Agreement, dated
April 25, 1991 between AMC and C&C.
Exhibit 7 Amended Agreement of Limited Partnership of C&C
Investment Holdings, L.P. dated as of April 22, 1992.
Exhibit 8* Letter Agreement between Stephen R. Cohen and Macuto
dated May 23, 1994.
Exhibit 9* Agreement between Stephen R. Cohen and Macuto dated
May 31, 1994.
________________
* Filed with this Schedule 13D Amendment No. 5.
21
EXHIBIT 8
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
22
<PAGE>
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
23
EXHIBIT 9
C&C INVESTMENT HOLDINGS, L.P.
PHILLIPS POINT, EAST TOWER
777 SOUTH FLAGLER DRIVE - SUITE 909
WEST PALM BEACH, FLORIDA 33401
Inversiones Macuto S.A.
c/o Osvaldo Cisneros
Edifico Pepsi
49 Avenida Transversal Principal
Los Cortijos de Lourdes
Caracas, Venezuela
Gentlemen:
This letter agreement amends the Amended and Restated Agreement of
Limited Partnership of C&C Investment Holdings, L.P., dated as April 22, 1992,
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"), as amended by the letter agreement, dated May 23, 1994,
between the General Partner and the Special Limited Partner (the "Partnership
Agreement"). Capitalized terms not defined herein shall have the meanings
assigned to such terms 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 the Special Limited Partner (and without the requirement
of making any capital contribution to the Partnership), in the name and on
behalf of the Partnership, to take any and all actions necessary or advisable
to:
Distribute any profit or gain arising out of the sale of 1,400,000
Option Shares, net of all costs, fees and expenses relating to the exercise of
the Option and the sale of such Option Shares, 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.
24
<PAGE>
The General Partner is authorized to withhold reasonable costs, fees
and expenses incurred in connection with the foregoing.
Please indicate your agreement with the foregoing on the enclosed copy
of this 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 31, 1994
25
