FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR (G) OF THE
SECURITIES EXCHANGE ACT OF 1934
THE PENN TRAFFIC COMPANY
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(Exact name of registrant as specified in its charter)
Delaware 25-0716800
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(State of incorporation or organization) (I.R.S. Employer
Identification Number)
1200 State Fair Boulevard, Syracuse, NY 13221
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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Common stock, par New York Stock Exchange
value $1.25 per share
Securities to be registered pursuant to Section 12(g) of the Act:
None
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(Title of Class)
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES
TO BE REGISTERED
The Penn Traffic Company (the "Company") is
authorized to issue up to 30,000,000 shares of Common Stock,
par value $1.25 per share. Dividends may be paid with
respect to the Common Stock when and if declared by the
Company's Board of Directors out of funds properly available
therefor, subject to restrictions upon the payment of
dividends contained in the Company's bank debt agreement and
in the indentures (the "Indentures") relating to the
Company's 9 5/8% Senior Subordinated Notes due 1999 (the
"9 5/8% Senior Subordinated Notes"), the Company's 11 1/2%
Senior Notes due 2001 (the "11 1/2% Senior Notes"), the
Company's 10 1/4% Senior Notes due 2002 (the "10 1/4% Senior
Notes"), the Company's 8 5/8% Senior Notes due 2003 (the
"8 5/8% Senior Notes"), the Company's 10 3/8% Senior Notes
due 2004 (the "10 3/8% Senior Notes"), and the Company's
10.65% Senior Notes due 2004 (the "10.65% Senior Notes").
See "Certain Restrictions" below. Holders of shares of
Common Stock do not have preemptive or other subscription
rights, or redemption or conversion rights; however, such
holders would participate ratably in any distribution of
assets to holders thereof in a liquidation after payment in
respect of any preferred shares then outstanding. Each share
of Common Stock is entitled to one vote on all matters on
which shareholders are entitled or permitted to vote,
including the election of directors, for which there are no
cumulative voting rights.
The Company's Certificate of Incorporation and
By-Laws provide that its Board of Directors, other than those
directors who may be elected only by the holders of Preferred
Stock (as defined below), is divided into three classes of
directors, with the terms of office of the directors of each
class staggered so that only one class is elected each year.
The transfer agent and registrar for the Common
Stock is Harris Trust Company of New York, 77 Water Street,
New York, New York 10005.
11,904,963 shares of Common Stock have been listed
on the American Stock Exchange, Inc. The Company presently
intends to withdraw such shares from such listing subsequent
to such time as the Company's Common Stock is admitted to
trading on the New York Stock Exchange, Inc.
Preferred Stock
The Company's authorized capital stock includes
10,000,000 shares of Preferred Stock, par value $1.00 per
share (the "Preferred Stock"). No shares of Preferred Stock
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are currently outstanding. The Board of Directors of the
Company has the authority by resolution to issue shares of
Preferred Stock in one or more series, and to fix the number
of shares constituting any such series, the voting powers,
designations, preferences and relative participating,
optional or other special rights and qualifications,
limitations or restrictions thereof, including the dividend
rights, dividend rate, ranking, terms of redemption
(including sinking fund provisions), redemption price or
prices, conversion rights and liquidation preferences of the
shares constituting any series, without any further vote or
action by the shareholders of the Company.
Certain Restrictions
The indentures relating to the 9 5/8% Senior
Subordinated Notes (the "9 5/8% Note Indenture"), the 11 1/2%
Senior Notes (the "11 1/2% Note Indenture"), the 10 1/4%
Senior Notes (the 10 1/4% Note Indenture"), the 8 5/8% Senior
Notes and the 10.65% Senior Notes (the "Senior Debt
Securities Indenture"), and the 10 3/8% Senior Notes (the
"10 3/8% Note Indenture") contain certain covenants
restricting the payment of dividends or other distributions
on the Company's capital stock. In addition, the Company's
bank debt agreement contains covenants restricting the
payment of dividends and requires that the Company meet
certain financial tests including minimum net worth, minimum
interest coverage and maximum capital expenditures.
With certain exceptions, the 9 5/8% Note Indenture
limits the payment of dividends and other distributions on,
and the purchase of, capital stock (other than dividends or
distributions in capital stock of the Company) to 50% of
Consolidated Net Income (or minus 100% in the event of a
deficit) plus the aggregate net proceeds from sales of
capital stock; provided that no such payment or distribution
may be made unless the Company could incur at least $1.00 of
indebtedness under a covenant which limits the Company's and
certain subsidiaries' ability to incur indebtedness
(generally based on a pro forma fixed charge coverage ratio
test). For purposes of this test, Consolidated Net Income is
defined generally as cumulative consolidated net income after
May 2, 1993 of the Company and of such subsidiaries of the
Company as are not designated "Unrestricted Subsidiaries" by
the Board of Directors of the Company.
With certain exceptions, the 11 1/2% Note Indenture
limits the payment of dividends and other distributions on,
and the purchase of, capital stock (other than dividends or
distributions in capital stock of the Company) to 50% of
Consolidated Net Income (or minus 100% in the event of a
deficit) plus the aggregate net proceeds from sales of
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capital stock; provided that no such payment or distribution
may be made unless the Company could incur at least $1.00 of
indebtedness under a covenant which limits the Company's and
certain subsidiaries' ability to incur indebtedness
(generally based on a pro forma fixed charge coverage ratio
test). For purposes of this test, Consolidated Net Income is
defined generally as cumulative consolidated net income on or
after November 3, 1991 of the Company and of such
subsidiaries of the Company as are not designated
"Unrestricted Subsidiaries" by the Board of Directors of the
Company.
With certain exceptions, the 10 1/4% Note Indenture
limits the payment of dividends and other distributions on,
and the purchase of, capital stock (other than dividends or
distributions in capital stock of the Company) to 50% of
Consolidated Net Income (or minus 100% in the event of a
deficit) plus the aggregate net proceeds from sales of
capital stock; provided that no such payment or distribution
may be made unless the Company could incur at least $1.00 of
indebtedness under a covenant which limits the Company's and
certain subsidiaries' ability to incur indebtedness
(generally based on a pro forma fixed charge coverage ratio
test). For purposes of this test, Consolidated Net Income is
defined generally as cumulative consolidated net income on or
after February 2, 1992 of the Company and of such
subsidiaries of the Company as are not designated
"Unrestricted Subsidiaries" by the Board of Directors of the
Company.
With certain exceptions, the Senior Debt Securities
Indenture limits the payment of dividends and other
distributions on, and the purchase of, capital stock (other
than dividends or distributions in capital stock of the
Company) to 50% of Consolidated Net Income (or minus 100% in
the event of a deficit) plus the aggregate net proceeds from
sales of capital stock; provided that no such payment or
distribution may be made unless the Company could incur at
least $1.00 of indebtedness under a covenant which limits the
Company's and certain subsidiaries' ability to incur
indebtedness (generally based on a pro forma fixed charge
coverage ratio test). For purposes of this test,
Consolidated Net Income is defined generally as cumulative
consolidated net income after October 31, 1993 for purposes
of the 8 5/8% Senior Notes and after July 31, 1994 for
purposes of the 10.65% Senior Notes of the Company and of
such subsidiaries of the Company as are not designated
"Unrestricted Subsidiaries" by the Board of Directors of the
Company.
With certain exceptions, the 10 3/8% Note Indenture
limits the payment of dividends and other distributions on,
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and the purchase of, capital stock (other than dividends or
distributions in capital stock of the Company) to 50% of
Consolidated Net Income (or minus 100% in the event of a
deficit) plus the aggregate net proceeds from sales of
capital stock; provided that no such payment or distribution
may be made unless the Company could incur at least $1.00 of
indebtedness under a covenant which limits the Company's and
certain subsidiaries' ability to incur indebtedness
(generally based on a pro forma fixed charge coverage ratio
test). For purposes of this test, Consolidated Net Income is
defined generally as cumulative consolidated net income
accrued on or after August 2, 1992 of the Company and of such
subsidiaries of the Company as are not designated
"Unrestricted Subsidiaries" by the Board of Directors of the
Company.
The Company's bank debt agreement provides that,
with certain exceptions, the Company may not make, or incur
any liability to make, any distribution, including any
dividend, redemption or repurchase on or of its capital
stock.
As of December 14, 1994, no dividend payments could
have been made under the limitations on payment of dividends
described above.
Business Combinations
The Company's Certificate of Incorporation provides
that the Company will be governed by Section 203 of the
Delaware General Corporation Law (the "DGCL"), as it may be
amended from time to time ("Section 203"). Section 203
provides that any person who acquires 15% of the outstanding
voting stock of a Delaware corporation becomes an "interested
stockholder," and the corporation may not effect mergers or
other "business combinations" with the interested stockholder
for a period of three years unless (i) prior to the date the
acquiror becomes an interested stockholder, the board of
directors approves either the business combination or the
transaction which results in the stockholder becoming an
interested stockholder, (ii) the interested stockholder is
able, by means of the tender offer or other transaction by
which the acquiror becomes an interested stockholder, to
acquire ownership of at least 85% of the outstanding voting
stock of the corporation (excluding in that calculation
shares owned by directors of the corporation who are also
officers and shares owned by certain employee stock plans),
or (iii) on or subsequent to the date such stockholder became
an interested stockholder, the board of directors approves a
business combination which is authorized by a vote of the
holders of two-thirds of the outstanding stock not held by
the interested stockholder. The definition of interested
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stockholder does not include (i) persons who owned 15% of the
voting stock before December 23, 1987, (ii) persons who
received more than 15% of the voting stock as a gift or
bequest of the person who owned it before that date, or
(iii) persons whose ownership of the voting stock rises over
the 15% threshold as a result of action taken by the
corporation unless that person thereafter acquires additional
shares.
A "business combination" is defined broadly in the
DGCL and includes any merger or consolidation caused by an
interested stockholder in which the surviving corporation
will not be subject to Section 203, and the sale, lease,
exchange, mortgage, pledge, transfer or other disposition to
an interested stockholder of any assets of a corporation
having a market value equal to or greater than 10% of the
aggregate market value of either the assets or the
outstanding stock of the corporation. "Business combination"
is also defined to include (i) issuances or transfers of
stock of the corporation or a subsidiary thereof to an
interested stockholder (except for transfers in connection
with certain conversions and issuances, transfers, certain
exchanges and certain pro rata distributions which do not
increase the interested stockholder's proportionate ownership
of the stock of the corporation), and (ii) any receipt by an
interested stockholder (except proportionately as a
stockholder) of any loans, advances, guarantees, pledges or
other financial benefits.
As of October 1994, to the knowledge of the
Company, the only person who beneficially owned 15% or more
of the outstanding shares of Common Stock was Gary D. Hirsch.
The Board of Directors of the Company approved the business
combination which resulted in such stockholder becoming an
interested stockholder, and the acquisition of the Common
Stock thereby, prior to such business combination. Thus,
Gary D. Hirsch (to the extent that he is deemed to be an
"interested stockholder" pursuant to Section 203) is not
subject to the restrictions of Section 203.
ITEM 2. EXHIBITS
1. All exhibits required by Instruction II to Item 2
will be supplied to the New York Stock Exchange.
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SIGNATURES
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Pursuant to the requirements of Section 12 of the
Securities Exchange Act of 1934, the registrant has duly caused
this registration statement to be signed on its behalf by the
undersigned, thereto duly authorized.
THE PENN TRAFFIC COMPANY
Dated: December 14, 1994
By: /s/ Martin A. Fox
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Martin A. Fox
Vice Chairman, Finance
