As filed with the Securities and Exchange Commission on October 1, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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THE PENN TRAFFIC COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 25-0716800
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
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1200 State Fair Boulevard
Syracuse, New York 13221-4737
PENN TRAFFIC COMPANY 1999 EQUITY INCENTIVE PLAN
THE NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
(Full title of the plan)
--------------------
Francis D. Price, Jr.
The Penn Traffic Company
1200 State Fair Boulevard
Syracuse, New York 13221-4737
(315) 461-2347
(Name, Address and Telephone Number, including Area Code, of Agent for Service)
------------------
Copy to:
Douglas A. Cifu, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, NY 10019-6064
(212) 373-3000
CALCULATION OF REGISTRATION FEE
================================================================================
<TABLE>
<CAPTION>
Proposed Proposed
Title of Maximum Offering Maximum
Securities to be Amount to be Price Per Share Aggregate Offering Amount of
Registered Registered(1) of Common Stock(2) Price (2) Registration Fee
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock $0.01 par 2,547,000 8.5937 21,888,153.90 $6,085.00
value per share
- ------------------------------------------------------------------------------------------------
</TABLE>
(1) Comprised of 2,297,000 shares of common stock reserved for issuance
pursuant to the 1999 Equity Incentive Plan and 250,000 shares reserved
for issuance pursuant to the Non-Employee Directors' Stock Option Plan.
(2) Estimated solely for purposes of calculating the registration fee and
calculated pursuant to Rule 457(c), based on the average of the high
and low sales prices of the shares of common stock on September 29,
1999 as reported on the Nasdaq National Market.
<PAGE>
EXPLANATORY NOTE
The Section 10(a) prospectuses being delivered by The Penn Traffic
Company (the "Company") to participants in the Company's 1999 Equity Incentive
Plan and the Non-Employee Directors' Stock Option Plan (collectively, the
"Plans") as required by Rule 428 under the Securities Act of 1933, as amended
(the "Securities Act"), have been prepared in accordance with the requirements
of Form S-8 and relate to shares of Common Stock, par value $.01 per share (the
"Common Stock") reserved for issuance pursuant to the Plans. The Plan
information required in the Section 10(a) prospectuses is included in documents
being maintained and delivered by the Company as required by Rule 428 under the
Securities Act. The Company shall provide to participants in the Plans a written
statement advising them of the availability without charge, upon written or oral
request, of documents incorporated by reference herein, as is required by Item 2
of Part I of Form S-8.
<PAGE>
PART I
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 1. PLAN INFORMATION. Section 10(a) Prospectuses are being delivered to
Participants as described in the Explanatory Note on the preceding page
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION. See
Explanatory Note.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission by the Penn Traffic Company (the "Company") are hereby incorporated
in this Registration Statement by reference:
(a) Annual Report on Form 10-K for the fiscal year ended January
30, 1999, filed on April 30, 1999, as amended on Form 10-K/A,
filed on May 3, 1999.
(b) (1) Current Reports on Form 8-K, filed on June 11, 1999
and July 14, 1999.
(2) Quarterly Reports on Form 10-Q, filed on June 15,
1999 and September 14, 1999, including the amendment
on Form 10-Q/A filed on September 22, 1999.
(c) the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A12G/A, dated June
29, 1999, filed pursuant to Section 12(g) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"),
including any amendment or report filed for the purpose of
updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act after the date of this Registration Statement
and prior to the filing of a post-effective amendment to this Registration which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold shall be deemed to be incorporated by reference
in this Registration Statement and to be a part hereof from the date of filing
such documents. Any statement contained in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware, as
amended, provides that under certain circumstances a corporation may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding whether civil,
criminal, administrative or investigative, by reason of the fact that he or she
is or was a director, officer, employee or agent of the Company or is or was
serving at its request in such capacity in another corporation or business
association, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding if he or she acted in good faith
and in a manner he or she reasonably believed to be in, or not opposed to the
best interests of, the Company and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Article 9 of the Amended and Restated Certificate of Incorporation of the
Company and Article 8 of the Company's By-laws provide in effect that, subject
to certain limited exceptions, the Company shall indemnify its directors and
officers to the full extent authorized or permitted by the General Corporation
Law of the State of Delaware. The directors and officers of the Company are
insured under policies of insurance maintained by the Company, subject to the
limits of the policies, against certain losses arising from any claims made
against them by reason of being or having been such directors or officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
5 Opinion of Paul, Weiss, Rifkind, Wharton & Garrison
23(a) Consent of PricewaterhouseCoopers LLP
23(b) Consent of Paul, Weiss, Rifkind, Wharton & Garrison (included
in its opinion filed as Exhibit 5 hereto)
24 Power of Attorney
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
Registration Statement;
(iii) To include any material information which
respect to the plan of distribution not previously disclosed
in this Registration Statement or any material change to such
information set forth in this Registration Statement;
provided, however, that the undertakings set forth in paragraphs (i)
and (ii) above do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this
Registration Statement.
II-2
<PAGE>
(2) 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.
(3) 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.
(b) The undersigned Registrant hereby undertakes 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 Section 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 this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or 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 against the Registrant 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 policy as expressed
in the Act and will be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, The Penn
Traffic Company certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New York, State of New York on this 30th day of
September, 1999.
PENN TRAFFIC COMPANY
By: /s/ Joseph V. Fisher
---------------------------------
Name: Joseph V. Fisher
Title: President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities:
SIGNATURE TITLE
--------- -----
/s/ Gary D. Hirsch Chairman of the Executive Committee and Director
- ------------------------------
Gary D. Hirsch
/s/ Joseph V. Fisher President, Chief Executive Officer and Director
- ------------------------------
Joseph V. Fisher
/s/ Martin A. Fox Vice Chairman of the Executive Committee, Chief
- ------------------------------ Financial Officer and Director
Martin A. Fox
/s/ Randy Martin Vice President and Chief Accounting Officer
- ------------------------------
Randy Martin
/s/ Kevin P. Collins Director
- ------------------------------
Kevin P. Collins
/s/ Gabriel Nechamkin Director
- ------------------------------
Gabriel Nechamkin
/s/ Mark Sonnino Director
- ------------------------------
Mark Sonnino
II-4
<PAGE>
EXHIBIT INDEX
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EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION OF EXHIBIT PAGE NUMBER
------ ---------------------- -----------
5 -- Opinion of Paul, Weiss, Rifkind, Wharton
& Garrison regarding legality of the
securities being registered
23(a) -- Consent of PricewaterhouseCoopers LLP
23(b) -- Consent of Paul, Weiss, Rifkind, Wharton
& Garrison (included in the opinion filed
as Exhibit 5)
24 -- Power of Attorney
EXHIBIT 5
[LETTERHEAD OF PWRW&G]
October 1, 1999
The Penn Traffic Company
1200 State Fair Boulevard
Syracuse, New York 13221-4737
Ladies and Gentlemen:
We are special counsel to The Penn Traffic Company, a Delaware
corporation (the "Company"), and we are rendering this opinion in connection
with the proposed issuance of up to 2,547,000 shares (the "Shares") of Common
Stock, par value $0.01 per share, of the Company under the Company's 1999 Equity
Incentive Plan (the "1999 Plan") and the Non-Employee Directors' Stock Option
Plan (the "Directors' Plan") and the registration of the Shares on the
Registration Statement on Form S-8 (the "Registration Statement"), filed by the
Company under the Securities Act of 1933, as amended.
We have examined the Registration Statement and the prospectuses
related to the 1999 Plan and the Directors' Plan. In addition, We have examined,
and have relied as to matters of fact upon, original or copies, certified or
otherwise identified to our satisfaction, of such corporate records, agreements,
documents and other instruments and such certificates or comparable documents of
public officials and of officers and representatives of the Company, and have
made such other and further investigations, as we have deemed relevant and
necessary as a basis for the opinion hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents.
Based upon the foregoing, and subject to the assumptions, exceptions
and qualifications set forth in this letter, we are of the opinion that the
Shares have been duly authorized by the Company and, when issued in accordance
with the terms of the 1999 Plan and Directors' Plan, will be validly issued,
fully paid and nonassessable.
Our opinion is limited to the laws of the State of New York, the
Delaware General Corporation Law and the federal laws of the United States of
America. Please be advised that no member of this firm is admitted to practice
in the State of Delaware. Our opinion is rendered only with respect to the
laws, and the rules, regulations and orders under those laws, that are currently
in effect.
This opinion is furnished by us solely for your benefit as part of the
transactions referred to in the Registration Statement and the prospectuses and
may not be circulated to, or relied upon by, any other person. This opinion
speaks only as of its date and we have no responsibility or obligation to update
this opinion, to consider its applicability or correctness to other than its
addressees, or to take into account changes in law, facts or any other
development of which we may become subsequently aware.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not thereby admit that we
come within the category of persons whose consent is required by the Securities
Act of 1933, as amended, or the rules promulgated under such Act..
Very truly yours,
/s/
----------------------------------------
Paul, Weiss, Rifkind, Wharton & Garrison
EXHIBIT 23(A)
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of The Penn Traffic Company of our report dated March 26,
1999, except for Note 2, as to which the date is April 5, 1999, relating to the
financial statements of The Penn Traffic Company which is included in the
Company's Annual Report on Form 10-K for the year ended January 30, 1999. We
also consent to the incorporation by reference of our report dated March 26,
1999, except for Note 2, as to which the date is April 5, 1999, relating to the
financial statement schedules, which appears in such Annual Report on Form 10-K.
/s/ PricewaterhouseCoopersLLP
------------------------------------
Syracuse, New York
September 29, 1999
EXHIBIT 24
POWER OF ATTORNEY
The undersigned Directors of the Penn Traffic Company, a Delaware
corporation which proposes to file with the Securities and Exchange Commission,
Washington, D.C. under the provisions of the Securities Act of 1933, as amended,
a Registration Statement on Form S-8 with respect to certain shares of its
common stock to be issued to employees pursuant to the Corporation's 1999 Equity
Incentive Plan and the Non-Employee Directors' Stock Option Plan, hereby
constitutes and appoints Martin A. Fox and Francis D. Price as his or her
attorney, with full power of substitution and resubstitution, for and in his or
her name, place and stead, to sign and file the proposed Registration Statement
and any and all amendments and exhibits thereto, and any and all applications
and other documents to be filed with the Securities and Exchange Commission
pertaining to such securities or such registration, with full power and
authority to do and perform any and all acts and things whatsoever requisite and
necessary to be done in the premises, hereby ratifying and approving the acts of
such attorney or any such substitute.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 30th
day of September, 1999.
NAME DATE
---- ----
/s/ Gary D. Hirsch September 30, 1999
- -------------------------
Gary D. Hirsch
/s/ Joseph V. Fisher September 30, 1999
- -------------------------
Joseph V. Fisher
<PAGE>
/s/ Martin A. Fox September 30, 1999
- -------------------------
Martin A. Fox
/s/ Kevin P. Collins September 30, 1999
- -------------------------
Kevin P. Collins
/s/ Gabriel Nechamkin September 30, 1999
- -------------------------
Gabriel Nechamkin
/s/ Mark Sonnino September 30, 1999
- -------------------------
Mark Sonnino
