As filed with the Securities and Exchange Commission on April 3, 1995
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TPI ENTERPRISES, INC.
(Exact name of registrant as specified in its charter)
NEW JERSEY 22-1899681
(State or other (I.R.S. Employer
jurisdiction of Identification No.)
incorporation or
organization)
3950 RCA BOULEVARD
SUITE 5001
PALM BEACH GARDENS, FLORIDA 33410
(Address of Principal Executive Offices)
TPI ENTERPRISES, INC. 1995 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
Robert A. Kennedy
Executive Vice President
TPI Enterprises, Inc.
3950 RCA Boulevard
Suite 5001
Palm Beach Gardens, Florida 33410
(407) 691-8800
(Telephone number, including area code, of agent for service)
Please send copies of communications to
Ronald C. Barusch, Esq.
Skadden, Arps, Slate, Meagher & Flom
1440 New York Avenue, N.W.
Washington, D.C. 20005
(202) 371-7000
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum Amount
Securites Amount to offering aggregate of
to be be price per offering registration
registered registered share(1)(2) price(2) fee(3)
Common 1,000,000(4) $5.25 $5,250,000 $1,810.34
Stock, par shares
value $.01
per share
(1) Estimated pursuant to Rule 457(c) and (h), on the basis
of the average of the high and low prices of the
registrant's Common Stock as reported by the NASDAQ
National Market System on March 27, 1995, a date within
five business days prior to the date of filing of this
registration statement.
(2) Estimated in accordance with Rule 457(c) and (h) solely
for purposes of calculating the registration fee.
(3) The registration fee has been calculated pursuant to
Section 6(b) of the Securities Act of 1933.
(4) Plus such additional number of shares of Common Stock
as may be issuable pursuant to the antidilution
provisions of the 1995 Employee Stock Purchase Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents heretofore filed by TPI
Enterprises, Inc. (the "Company") with the Securities and
Exchange Commission pursuant to the Securities Exchange Act
of 1934 (File No. 0-7961) are incorporated herein by
reference:
1. Annual Report on Form 10-K for the year ended
December 25, 1994.
2. As to the Company's common stock, which is
registered under Section 12 of the Exchange Act, the
description of such class of securities as given in Article
Third of the Company's Restated Certificate of Incorporation
and Certificate of Amendment dated March 25, 1987 (filed as
an exhibit to the Company's Annual Report on Form 10-K for
the year ended December 31, 1986) and in the Certificate of
Amendment thereto dated November 10, 1988 (filed as an
exhibit to the Company's Annual Report on Form 10-K for the
year ended December 31, 1988).
3. All reports and other documents filed by the
Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act after the date hereof and prior to the
filing of a post-effective amendment which indicates that
all securities offered hereby have been sold or which
registers all securities then remaining unsold, as of the
date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Paragraph SIXTH of TPI Enterprises' Restated
Certificate of Incorporation, as amended ("Paragraph Sixth")
limits personal liability of its officers and directors to
the fullest extent permitted by law and Article XI of TPI
Enterprises' By-Laws provides for the indemnification of TPI
Enterprises' officers and directors to the fullest extent
permitted by law.
Article XI of TPI Enterprises' By-Laws. Article
XI provides that directors and officers have a right to
indemnification, to the fullest extent permitted by law, for
expenses (including attorney's fees), damages, punitive
damages, judgments, penalties, fines and amounts paid in
settlement incurred by any director or officer which arise
from any threatened, pending or completed proceeding (other
than a proceeding by or in the right of TPI Enterprises (a
"Derivative Action")) by reason of the fact that such person
was a director or officer of TPI Enterprises or is or was a
director or officer of TPI Enterprises or is or was a
director or officer of TPI Enterprises serving, at the
request of TPI Enterprises, as a director, officer, trustee
or employee of another corporation, partnership, employee
benefit plan or other enterprise, unless the action giving
rise to the claim for indemnification was not taken in good
faith and in a manner such person reasonably believed to be
in or not opposed to the best interests of TPI Enterprises,
and in the case of a criminal proceeding, such person had no
reasonable cause to believe his conduct was unlawful. TPI
Enterprises shall pay the expenses of a director or officer
in connection with a Derivative Action which involves a
director or officer by reason of his being or having been a
director or officer if such officer or director acted in
good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of TPI Enterprises;
provided that where the director or officer is adjudged to
be liable to TPI Enterprises with respect to such claim,
issue or matter, indemnification would be available only to
the extent authorized by the court. Article XI provides
that the rights of directors and officers thereunder are
contractual rights.
In accordance with New Jersey Law, Article XI
provides that indemnification of directors and officers may
be made by TPI Enterprises only as authorized in a specific
case upon a determination that the director or officer met
the applicable standard of conduct set forth above, unless
such indemnification is otherwise authorized by a court.
Such determination shall be made by the Board or a committee
thereof or, in certain circumstances, by written opinion of
independent legal counsel. Article XI also provides that
directors and officers may apply to a court for an award of
indemnification by TPI Enterprises for unpaid amounts
claimed thereunder, and that if such suit is successful on
the merits or otherwise, the expenses incurred in connection
with such proceeding shall also be reimbursed by TPI
Enterprises. Article XI provides that, while it is a
defense to such a suit that the person claiming
indemnification has not met the applicable standard of
conduct making indemnification permissible under the New
Jersey Business Corporation Act, the burden of proving such
defense shall be on TPI Enterprises and neither the failure
of TPI Enterprises to have made a determination that
indemnification is proper, nor an actual determination that
such person has not met the applicable standard of conduct,
nor the termination of any proceeding by judgment, order,
settlement, conviction or upon plea of nolo contendere,
shall be a defense to the action or create a presumption
that such person has not met the applicable standard of
conduct.
As permitted by New Jersey Law, Article XI also
requires that TPI Enterprises advance expenses to an
indemnified party as authorized by the Board upon receipt of
an undertaking to repay those amounts unless it is
ultimately determined that such person is entitled to
indemnification. In addition, Article XI provides, as
permitted by New Jersey Law, that TPI Enterprises may
purchase and maintain insurance on behalf of its directors
and officers against any expenses incurred and liabilities
asserted against any director or officer by reason of his
being or having been such, whether or not TPI Enterprises
would have the power to indemnify such person against such
expenses and liabilities under Article XI. TPI Enterprises
presently maintains such insurance on behalf of its
directors and officers.
Article XI further provides that (i) TPI
Enterprises may indemnify directors and officers against
excise taxes assessed on a person with respect to an
employee benefit plan; and (ii) with respect to employee
benefit plans, a person who acted in good faith or in a
manner believed to be in the best interest of the
participants and beneficiaries of an employee benefit plan
will be deemed to have acted not opposed to the best
interest of TPI Enterprises as referred to in Article XI.
Paragraph Sixth of the Restated Certificate of
Incorporation. Paragraph Sixth is intended to give TPI
Enterprises' directors and officers the fullest protection
against personal liability that is permitted under the New
Jersey Business Corporation Act. Paragraph Sixth eliminates
personal liability of directors and officers to TPI
Enterprises or its shareholders for monetary damages for
breach of any duty as a director or officer owed to TPI
Enterprises or its shareholders, except for any breach of
duty based upon an act or omission: (i) in breach of the
duty of loyalty to TPI Enterprises or its shareholders; (ii)
not in good faith or involving a knowing violation of law;
or (iii) resulting in receipt by the director or officer of
an improper personal benefit. Paragraph Sixth further
provides that no amendment or repeal of Paragraph Sixth
shall adversely affect any right or protection of a director
or officer of TPI Enterprises existing at the time of such
amendment or repeal.
Paragraph Sixth eliminates personal liability of
directors and officers for violations of their fiduciary
duty of care and absolves directors and officers from
liability to TPI Enterprises or its shareholders for
negligence in the performance of their duties, including
gross negligence. Paragraph Sixth does not, however, limit
the availability of equitable remedies such as an injunction
or recision based on a director's or officer's breach of the
duty of care. In addition, Paragraph Sixth does not
insulate directors and officers of TPI Enterprises from
liability to TPI Enterprises or its shareholders for breach
of the duty of loyalty or for specified conduct involving
"bad faith." Paragraph Sixth does not apply to acts or
omissions of directors or officers that occurred before its
adoption, and does not limit or affect the shareholders'
ability to seek and obtain relief under any other law,
including the federal securities laws.
Insurance. The directors and officers of TPI
Enterprises are insured against losses arising from any
claim against them as such for wrongful acts or omissions,
subject to certain limitations.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
EXHIBIT DESCRIPTION
NUMBER
4(a) TPI Enterprises, Inc. 1995 Employee Stock
Purchase Plan, subject to shareholder
ratification (filed as an exhibit to the
Company's Annual Report on Form 10-K for
the year ended December 25, 1994 and
incorporated herein by reference)
4(b) Amended and Restated TPI Enterprises, Inc.
Employee Stock Purchase Plan Trust
Agreement (filed as an exhibit to the
Company's Annual Report on Form 10-K for
the year ended December 25, 1994 and
incorporated herein by reference)
4(c) Description of the Company's common stock
as given in Article Third of the Company's
Restated Certificate of Amendment dated
March 25, 1987 (filed as an exhibit to the
Company's Annual Report on Form 10-K for
the year ended December 31, 1991 and
incorporated herein by reference) and in
the Certificates of Amendment thereto dated
November 10, 1988 (filed as an exhibit to
the Company's Annual Report on Form 10-K
for the year ended December 31, 1988 and
incorporated herein by reference)
23 Consent of Deloitte & Touche LLP
24 Power of Attorney (included on signature
page of this Registration Statement)
An opinion of counsel (Exhibit Number 5) is not
being filed since the securities being registered are not
original issuance securities.
ITEM 9. UNDERTAKINGS
The Company hereby undertakes:
1. (a)- To file, during any period in which sales are
being made, a post-effective amendment to
this registration statement to include any
material information with respect to the Plan
of distribution not previously disclosed in
the registration statement or any material
change to such information in the
registration statement.
(b)- That, for the purpose of determining any
liability under the Securities Act of 1933,
each such post-effective amendment shall be
deemed to be a new registration statement
relating to the securities offered therein,
and the offering of such securities at that
time shall be deemed to be the initial bona
fide offering thereof.
(c)- To remove from registration by means of a
post-effective amendment any of the
securities being registered which remain
unsold at the termination of the offering.
2. - That, for purposes of determining any
liability under the Securities Act of 1933,
each filing of the registrant's annual report
pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee
benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in
the registration statement shall be deemed to
be a new registration statement relating to
the securities offered therein, and the
offering of such securities at that time
shall be deemed to be the initial bona fide
offering thereof.
3. - Insofar as indemnification for liabilities
arising under the Securities Act of 1933 may
be permitted to directors, officers and
controlling persons of the registrant
pursuant to the foregoing provisions, or
otherwise, the registrant has been advised
that in the opinion of the Securities and
Exchange Commission such indemnification is
against public policy as expressed in the Act
and is, therefore, unenforceable. In the
event that a claim for indemnification
against such liabilities (other than the
payment by the registrant of expenses
incurred or paid by a director, officer or
controlling person of the registrant in the
successful defense of any action, suit or
proceeding) is asserted by such director,
officer or controlling person in connection
with the securities being registered, the
registrant will, unless in the opinion of its
counsel the matter has been settled by
controlling precedent, submit to a court of
appropriate jurisdiction the question whether
such indemnification by it is against public
policy as expressed in the Act and will be
governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act
of 1933, the registrant certifies that it has reasonable
grounds to believe it meets all of the requirements for
filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Palm Beach
Gardens, and the State of Florida, on the 31st day of March,
1995.
TPI ENTERPRISES, INC.
/s/ J. Gary Sharp
________________________
By: J. Gary Sharp
President and Chief
Executive Officer
POWER OF ATTORNEY
We, the undersigned directors and officers of TPI
Enterprises, Inc. and each of us, do hereby constitute and
appoint each of J. Gary Sharp and Frederick W. Burford,
either of whom may act without the joinder of the other, our
true and lawful attorneys-in-fact and agents, with power of
substitution, to do any and all acts and things in our name
and behalf in our capacities as directors and officers and
to execute any and all instruments for us and in our names
in the capacities indicated above, which said attorneys-in-
fact and agents may deem necessary or advisable to enable
said corporation to comply with the Securities Act of 1933,
as amended, and any rules, regulations, and requirements of
the Securities and Exchange Commission, in connection with
this registration statement, including specifically, but
without limitation, power and authority to sign for us or
any of us in our names in the capacities indicated below,
and any and all amendments (including post-effective
amendments) to this Registration Statement and to file the
same, with all exhibits thereto and all other documents in
connection therewith, with the Securities and Exchange
Commission and we do hereby ratify and confirm all that each
of the said attorneys-in-fact and agents, or their
substitute or substitutes shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act
of 1933, this registration statement has been signed below
by the following persons in the capacities and on the dates
indicated.
Signature Title Date
/s/ J. Gary Sharp President, March 31, 1995
_______________________ Chief
J. Gary Sharp Executive
Officer and
Director
(principal
executive
officer)
/s/ Frederick W. Burford Executive Vice March 31, 1995
________________________ President,
Frederick W. Burford Chief Financial
Officer and
Director
(principal
financial and
accounting
officer)
/s/ Paul James Siu Director March 31, 1995
______________________
Paul James Siu
/s/ Edwin B. Spievack Director March 31, 1995
_______________________
Edwin B. Spievack
/s/ Osvaldo Cisneros Director March 31, 1995
_______________________
Osvaldo Cisneros
/s/ Thomas M. Taylor Director March 31, 1995
_______________________
Thomas M. Taylor
/s/ John L. Marion, Jr. Director March 31, 1995
________________________
John L. Marion, Jr.
/s/ Douglas K. Bratton Director March 31, 1995
________________________
Douglas K. Bratton
/s/ Lawrence F. Levy Director March 31, 1995
________________________
Lawrence F. Levy
Exhibit Index
Exhibit Description of Exhibit Page
Number
4(a) TPI Enterprises, Inc. 1995
Employee Stock Purchase Plan,
subject to shareholder
ratification (filed as an exhibit
to the Company's Annual Report on
Form 10-K for the year ended December
25, 1994 and incorporated herein
by reference)
4(b) Amended and Restated TPI
Enterprises, Inc. Employee Stock
Purchase Plan Trust Agreement
(filed as an exhibit to the
Company's Annual Report on Form
10-K for the year ended December
25, 1994 and incorporated herein
by reference)
4(c) Description of the Company's
common stock as given in Article
Third of the Company's Restated
Certificate of Amendment dated
March 25, 1987 (filed as an
exhibit to the Company's Annual
Report on Form 10-K for the year
ended December 31, 1991 and
incorporated herein by reference)
and in the Certificates of
Amendment thereto dated November
10, 1988 (filed as an exhibit to
the Company's Annual Report on
Form 10-K for the year ended
December 31, 1988 and incorporated
herein by reference
23 Consent of Deloitte & Touche LLP
24 Power of Attorney (included on
signature page of this
Registration Statement)
Exhibit 23
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in
this Registration Statement of TPI Enterprises, Inc. on Form
S-8 of our reports dated March 10, 1995 appearing in the
Annual Report on Form 10-K of TPI Enterprises, Inc. for the
fiscal year ended December 25, 1994.
/s/ Deloitte & Touche LLP
Memphis, Tennessee
March 31, 1995
