SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
(Amendment No. )*
THE PENN TRAFFIC COMPANY
-------------------------------------------
(Name of Issuer)
Common Stock, Par Value $0.01 Per Share
-------------------------------------------
(Title of Class of Securities)
707832200
------------------
(CUSIP Number)
Stephen M. Vine, Esq.
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
590 Madison Avenue
New York, New York 10022
(212) 872-1000
-------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
July 29, 1999
----------------
(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 that is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box
[_].
Note. Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7(b) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 or otherwise subject to the liabilities of that section of the Act but
shall be subject to all other provisions of the Act (however, see the Notes).
Continued on following page(s)
Page 1 of 39 Pages
Exhibit Index: Page 19
<PAGE>
Page 2 of 39 Pages
SCHEDULE 13D
CUSIP No. 707832200
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
SOROS FUND MANAGEMENT LLC
2 Check the Appropriate Box If a Member of a Group*
a. [_]
b. [x]
3 SEC Use Only
4 Source of Funds*
Not Applicable
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e) [_]
6 Citizenship or Place of Organization
Delaware
7 Sole Voting Power
Number of 0
Shares
Beneficially 8 Shared Voting Power
Owned By 0
Each
Reporting 9 Sole Dispositive Power
Person 0
With
10 Shared Dispositive Power
0
11 Aggregate Amount Beneficially Owned by Each Reporting Person
8,980,928/1/
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares*
[x]
13 Percent of Class Represented By Amount in Row (11)
44.67%
14 Type of Reporting Person*
OO; IA
- ---------------
/1/ See Item 5
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
Page 3 of 39 Pages
SCHEDULE 13D
CUSIP No. 707832200
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
GEORGE SOROS (in the capacity described herein)
2 Check the Appropriate Box If a Member of a Group*
a. [_]
b. [x]
3 SEC Use Only
4 Source of Funds*
Not Applicable
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e) [_]
6 Citizenship or Place of Organization
United States
7 Sole Voting Power
Number of 0
Shares
Beneficially 8 Shared Voting Power
Owned By 0
Each
Reporting 9 Sole Dispositive Power
Person 0
With
10 Shared Dispositive Power
0
11 Aggregate Amount Beneficially Owned by Each Reporting Person
8,980,928/1/
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares*
[x]
13 Percent of Class Represented By Amount in Row (11)
44.67%
14 Type of Reporting Person*
IA
- ---------------
/1/ See Item 5
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
Page 4 of 39 Pages
SCHEDULE 13D
CUSIP No. 707832200
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
STANLEY F. DRUCKENMILLER (in the capacity described herein)
2 Check the Appropriate Box If a Member of a Group*
a. [_]
b. [x]
3 SEC Use Only
4 Source of Funds*
Not Applicable
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e) [_]
6 Citizenship or Place of Organization
United States
7 Sole Voting Power
Number of 0
Shares
Beneficially 8 Shared Voting Power
Owned By 0
Each
Reporting 9 Sole Dispositive Power
Person 0
With
10 Shared Dispositive Power
0
11 Aggregate Amount Beneficially Owned by Each Reporting Person
8,980,928/1/
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares*
[x]
13 Percent of Class Represented By Amount in Row (11)
44.67%
14 Type of Reporting Person*
IA
- ---------------
/1/ See Item 5
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
Page 5 of 39 Pages
SCHEDULE 13D
CUSIP No. 707832200
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
SATELLITE ASSET MANAGEMENT, L.P.
2 Check the Appropriate Box If a Member of a Group*
a. [_]
b. [x]
3 SEC Use Only
4 Source of Funds*
Not Applicable
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e) [_]
6 Citizenship or Place of Organization
Delaware
7 Sole Voting Power
Number of 8,980,928
Shares
Beneficially 8 Shared Voting Power
Owned By 0
Each
Reporting 9 Sole Dispositive Power
Person 8,980,928
With
10 Shared Dispositive Power
0
11 Aggregate Amount Beneficially Owned by Each Reporting Person
8,980,928
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares*
[x]
13 Percent of Class Represented By Amount in Row (11)
44.67%
14 Type of Reporting Person*
PN; IA
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
Page 6 of 39 Pages
SCHEDULE 13D
CUSIP No. 707832200
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
SATELLITE FUND MANAGEMENT LLC
2 Check the Appropriate Box If a Member of a Group*
a. [_]
b. [x]
3 SEC Use Only
4 Source of Funds*
Not Applicable
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e) [_]
6 Citizenship or Place of Organization
Delaware
7 Sole Voting Power
Number of 8,980,928
Shares
Beneficially 8 Shared Voting Power
Owned By 0
Each
Reporting 9 Sole Dispositive Power
Person 8,980,928
With
10 Shared Dispositive Power
0
11 Aggregate Amount Beneficially Owned by Each Reporting Person
8,980,928
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares*
[x]
13 Percent of Class Represented By Amount in Row (11)
44.67%
14 Type of Reporting Person*
OO; IA
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
Page 7 of 39 Pages
SCHEDULE 13D
CUSIP No. 707832200
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
MARK SONNINO (in the capacity described herein)
2 Check the Appropriate Box If a Member of a Group*
a. [ ]
b. [x]
3 SEC Use Only
4 Source of Funds*
Not Applicable
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e) [_]
6 Citizenship or Place of Organization
United States
7 Sole Voting Power
Number of 20,000
Shares
Beneficially 8 Shared Voting Power
Owned By 8,980,928
Each
Reporting 9 Sole Dispositive Power
Person 20,000
With
10 Shared Dispositive Power
8,980,928
11 Aggregate Amount Beneficially Owned by Each Reporting Person
9,000,928
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares*
[x]
13 Percent of Class Represented By Amount in Row (11)
44.72%
14 Type of Reporting Person*
IA
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
Page 8 of 39 Pages
SCHEDULE 13D
CUSIP No. 707832200
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
LIEF D. ROSENBLATT (in the capacity described herein)
2 Check the Appropriate Box If a Member of a Group*
a. [_]
b. [x]
3 SEC Use Only
4 Source of Funds*
Not Applicable
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e) [_]
6 Citizenship or Place of Organization
United States
7 Sole Voting Power
Number of 20,000
Shares
Beneficially 8 Shared Voting Power
Owned By 8,980,928
Each
Reporting 9 Sole Dispositive Power
Person 20,000
With
10 Shared Dispositive Power
8,980,928
11 Aggregate Amount Beneficially Owned by Each Reporting Person
9,000,928
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares*
[x]
13 Percent of Class Represented By Amount in Row (11)
44.72%
14 Type of Reporting Person*
IA
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
Page 9 of 39 Pages
SCHEDULE 13D
CUSIP No. 707832200
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
GABRIEL NECHAMKIN (in the capacity described herein)
2 Check the Appropriate Box If a Member of a Group*
a. [_]
b. [x]
3 SEC Use Only
4 Source of Funds*
Not Applicable
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e) [_]
6 Citizenship or Place of Organization
United States
7 Sole Voting Power
Number of 20,000
Shares
Beneficially 8 Shared Voting Power
Owned By 8,980,928
Each
Reporting 9 Sole Dispositive Power
Person 20,000
With
10 Shared Dispositive Power
8,980,928
11 Aggregate Amount Beneficially Owned by Each Reporting Person
9,000,928
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares*
[x]
13 Percent of Class Represented By Amount in Row (11)
44.72%
14 Type of Reporting Person*
IA
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
Page 10 of 39 Pages
This Statement on Schedule 13D relates to shares of Common Stock,
$0.01 par value per share (the "Shares"), of The Penn Traffic Company (the
"Issuer"). This Statement is being filed by the Reporting Persons (as defined
herein) to report that pursuant to the issuance of Shares in connection with the
consummation of the Plan of Reorganization of the Issuer, the Reporting Persons
may be deemed to be the beneficial owners of more than 5% of the outstanding
Shares of the Issuer.
Item 1. Security and Issuer.
This Statement relates to the Shares. The address of the principal
executive office of the Issuer is 1200 State Fair Boulevard, Syracuse, New York,
13221.
Item 2. Identity and Background.
This Statement is being filed on behalf of each of the following
persons (collectively, the "Reporting Persons"):
i) Soros Fund Management LLC ("SFM LLC");
ii) Mr. George Soros ("Mr. Soros");
iii) Mr. Stanley F. Druckenmiller ("Mr. Druckenmiller");
iv) Satellite Asset Management, L.P. ("Satellite LP");
v) Satellite Fund Management LLC ("Satellite LLC");
vi) Mr. Mark Sonnino ("Mr. Sonnino");
vii) Mr. Lief D. Rosenblatt ("Mr. Rosenblatt"); and
viii) Mr. Gabriel Nechamkin ("Mr. Nechamkin").
This Statement relates to the Shares held for the accounts of Quantum
Partners LDC, a Cayman Islands exempted limited duration company ("Quantum
Partners"), and Quota Fund N.V., a Netherlands Antilles corporation ("Quota").
The Reporting Persons
The business of SFM LLC is managed through a Management Committee (the
"Management Committee") comprised of Mr. Soros, Mr. Druckenmiller and Mr. Gary
Gladstein. SFM LLC, a Delaware limited liability company, has its principal
office at 888 Seventh Avenue, 33rd Floor, New York, New York 10106. Its
principal business is to serve, pursuant to contract, as the principal
investment manager to several foreign investment companies (the "SFM Clients").
Mr. Soros, as Chairman of SFM LLC, has the ability to direct the investment
decisions of SFM LLC and as such may be deemed to have investment discretion
over the securities held for the accounts of the SFM Clients. Mr. Druckenmiller,
as Lead Portfolio Manager of SFM LLC, has the ability to direct the investment
decisions of SFM LLC and as such may be deemed to have investment discretion
over the securities held for the accounts of the SFM Clients. Set forth in Annex
A hereto and incorporated by reference in response to this Item 2 and elsewhere
in this Schedule 13D as applicable is a list of the Managing Directors of SFM
LLC.
<PAGE>
Page 11 of 39 Pages
The principal occupation of Mr. Soros, a United States citizen, is his
direction of the activities of SFM LLC, which is carried out in his capacity as
Chairman of SFM LLC at SFM LLC's principal office.
The principal occupation of Mr. Druckenmiller, a United States
citizen, is his position as Lead Portfolio Manager and a Member of the
Management Committee of SFM LLC, which is carried out at SFM LLC's principal
office.
SFM LLC serves as principal investment manager to Quantum Partners and
Quota, and as such, has been granted investment discretion over portfolio
investments, including the Shares, held for the accounts of Quantum Partners and
Quota. SFM LLC, on behalf of Quantum Partners and Quota, has granted investment
discretion over certain investments, including the Shares, of Quantum Partners
and Quota to Satellite LP, pursuant to investment management contracts between
Quantum Partners and Satellite LP (the "Quantum Partners-Satellite Contract")
and between Quota and Satellite LP (the "Quota-Satellite Contract"). None of SFM
LLC, Mr. Soros and Mr. Druckenmiller currently exercises voting or dispositive
power over the Shares held for the accounts of Quantum Partners and Quota.
Satellite LP is an investment advisory firm organized as a Delaware
limited partnership. Satellite LLC, a Delaware limited liability company, is the
general partner of Satellite LP. Each of Satellite LP and Satellite LLC has its
principal office at 888 Seventh Avenue, 29th Floor, New York, New York 10106.
Satellite LP's principal business is to serve, pursuant to contract, as the
principal investment manager to several private investment companies. Satellite
LLC's principal business is to serve as general partner of Satellite LP. Mr.
Sonnino, Mr. Rosenblatt and Mr. Nechamkin are Managing Members of Satellite LLC
and as such, may be deemed to have investment discretion over the Shares held
for the accounts of Quantum Partners and Quota. Set forth in Annex B hereto and
incorporated by reference in response to this Item 2 and elsewhere in this
Schedule 13D as applicable is a list of the Managing Members of Satellite LLC.
Pursuant to regulations promulgated under Section 13(d) of the Act,
SFM LLC, Mr. Soros, in his capacity as Chairman of SFM LLC, and Mr.
Druckenmiller, in his capacity as Lead Portfolio Manager of SFM LLC, each may be
deemed a beneficial owner of the Shares held for the accounts of Quantum
Partners and Quota. Pursuant to regulations promulgated under Section 13(d) of
the Act, Satellite LP, Satellite LLC, Mr. Sonnino, Mr. Rosenblatt and Mr.
Nechamkin, in their capacity as Managing Directors of Satellite LLC, each may be
deemed a beneficial owner of the Shares held for the accounts of Quantum
Partners and Quota.
During the past five years, none of the Reporting Persons and, to the
best of the Reporting Persons' knowledge, any other person identified in
response to this Item 2 has been (a) convicted in a criminal proceeding or (b) a
party to any civil proceeding as a result of which it or he has been subject to
a judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities laws, or finding
any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
Pursuant to the Plan of Reorganization (the "Plan") of the Issuer, a
copy of which is incorporated by reference hereto as Exhibit D, upon
consummation of the Plan, holders of Senior Note Claims (as defined in the Plan)
became entitled to receive Shares in respect of such securities. As a result of
Quantum Partners' and Quota's ownership of Senior Note Claims, an aggregate of
7,802,192 and 1,178,736 Shares were issued on July 29, 1999 to Quantum Partners'
and Quota, respectively.
The foregoing description of the Plan does not purport to be complete
and is qualified in its entirety by reference to the Plan (attached as Exhibit D
to this Initial Statement), which is incorporated herein by reference.
<PAGE>
Page 12 of 39 Pages
The securities held for the accounts of Quantum Partners and Quota may
be held through margin accounts maintained with brokers, which extend margin
credit as and when required to open or carry positions in their margin accounts,
subject to applicable federal margin regulations, stock exchange rules and such
firms' credit policies. The positions which may be held in the margin accounts,
including the Shares, are pledged as collateral security for the repayment of
debit balances in the respective accounts.
Item 4. Purpose of Transaction.
All of the Shares reported herein as having been acquired for or
disposed of from the accounts of Quantum Partners and/or Quota were acquired or
disposed of for investment purposes. Neither the Reporting Persons, except as
otherwise provided below, nor, to the best of their knowledge, any of the other
persons identified in response to Item 2, has any present plans or proposals
that relate to or would result in any of the transactions described in
subparagraphs (a) through (j) of Item 4 of Schedule 13D.
As directors of the Issuer, Mr. Sonnino, Mr. Rosenblatt and Mr.
Nechamkin may have influence over the corporate activities of the Issuer,
including as may relate to transactions described in subparagraphs (a) through
(j) of Item 4 of Schedule 13D.
The Reporting Persons reserve the right to acquire, or cause to be
acquired, additional securities of the Issuer, to dispose of, or cause to be
disposed, such securities at any time or to formulate other purposes, plans or
proposals regarding the Issuer or any of its securities, or to propose to take
any action as described in subparagraphs (a) through (j) of Item 4 of Schedule
13D to the extent deemed advisable in light of general investment and trading
policies of the Reporting Persons, market conditions or other factors.
Item 5. Interest in Securities of the Issuer.
(a) (i) As a consequence of SFM LLC's ability to terminate the
Quantum Partners - Satellite Contract and the Quota-Satellite Contract with
respect to all investments, including those involving the Shares held for the
account of each of Quantum Partners and Quota, and acquire voting and
dispositive power over the Shares held for the accounts of each of Quantum
Partners and Quota within 60 days, notwithstanding the fact that none of SFM
LLC, Mr. Soros and Mr. Druckenmiller currently exercises such power, SFM LLC,
Mr. Soros and Mr. Druckenmiller may be deemed the beneficial owner of the
7,802,192 Shares held for the account of Quantum Partners and 1,178,736 Shares
held for the account of Quota. In total, each of SFM LLC, Mr. Soros and Mr.
Druckenmiller may be deemed the beneficial owner of 8,980,928 Shares
(approximately 44.67% of the total number of Shares outstanding).
(ii) Each of Satellite LP and Satellite LLC may be deemed the
beneficial owner of 8,980,928 Shares (approximately 44.67% of the total number
of Shares outstanding). This number includes (A) 7,802,192 Shares held for the
account of Quantum Partners and (B) 1,178,736 Shares held for the account of
Quota.
(iii) Mr. Sonnino may be deemed the beneficial owner of 9,000,928
Shares (approximately 44.72% of the total number of Shares outstanding assuming
exercise of the director's options held for his account). This number includes
(A) 7,802,192 Shares held for the account of Quantum Partners, (B) 1,178,736
Shares held for the account of Quota and (C) 20,000 Shares issuable upon
exercise of director's options held for his own account.
(iv) Mr. Rosenblatt may be deemed the beneficial owner of
9,000,928 Shares (approximately 44.72% of the total number of Shares outstanding
assuming exercise of the director's options held for his account). This number
<PAGE>
Page 13 of 39 Pages
includes (A) 7,802,192 Shares held for the account of Quantum Partners, (B)
1,178,736 Shares held for the account of Quota and (C) 20,000 Shares issuable
upon exercise of director's options held for his own account.
(v) Mr. Nechamkin may be deemed the beneficial owner of 9,000,928
Shares (approximately 44.72% of the total number of Shares outstanding assuming
exercise of the director's options held for his account). This number includes
(A) 7,802,192 Shares held for the account of Quantum Partners, (B) 1,178,736
Shares held for the account of Quota and (C) 20,000 Shares issuable upon
exercise of director's options held for his own account.
(b) (i) The power to direct the voting and disposition of the Shares
held for the account of each of Quantum Partners and Quota is currently vested
in Satellite LP pursuant to the Quantum Partners- Satellite Contract and
Quota-Satellite Contract, respectively. SFM LLC has the contractual authority on
behalf of each of Quantum Partners and Quota to terminate the Quantum
Partners-Satellite Contract and Quota-Satellite Contract, within 60 days and, as
a result, SFM LLC, Mr. Soros and Mr. Druckenmiller may be deemed to have the
voting and dispositive power held by Satellite LLC, notwithstanding the fact
that none of SFM LLC, Mr. Soros and Mr. Druckenmiller currently exercises such
power, with respect to the Shares held for the account of Quantum Partners and
Quota.
(ii) Each of Satellite LP and Satellite LLC (by virtue of the
Quantum Partners-Satellite Contract and the Quota-Satellite Contract) may be
deemed to have the sole power to direct the voting and disposition of the
7,802,192 Shares held for the account of Quantum Partners and the 1,178,736
Shares held for the account of Quota.
(iii) Each of Mr. Sonnino, Mr. Rosenblatt and Mr. Nechamkin, as a
result of their positions with Satellite LLC may be deemed to have the shared
power to direct the voting and disposition of the 7,802,192 Shares held for the
account of Quantum Partners and the 1,178,736 Shares held for the account of
Quota.
(iv) Mr. Sonnino has the sole power to direct the voting and
disposition of the 20,000 Shares issuable upon the exercise of the securities
reported herein as being held for his account.
(v) Mr. Rosenblatt has the sole power to direct the voting and
disposition of the 20,000 Shares issuable upon the exercise of the securities
reported herein as being held for his account.
(vi) Mr. Nechamkin has the sole power to direct the voting and
disposition of the 20,000 Shares issuable upon the exercise of the securities
reported herein as being held for his account.
(c) Except as described in Item 3 and Annex B hereto, there have
been no transactions effected with respect to the Shares since June 10, 1999 (60
days prior to the date hereof) by any of the Reporting Persons.
(d) (i) The shareholders of Quantum Partners, including Quantum Fund
N.V., a Netherlands Antilles company, have the right to participate in the
receipt of dividends from, or proceeds from the sale of, the Shares held for the
account of Quantum Partners in accordance with their ownership interests in
Quantum Partners.
(ii) The shareholders of Quota have the right to participate in
the receipt of dividends from, or proceeds from the sale of, the Shares held for
the account of Quota in accordance with their ownership interests in Quota.
(e) Not applicable.
<PAGE>
Page 14 of 39 Pages
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
In connection with the consummation of the Plan, each of Quantum
Partners and Quota entered into a Registration Rights Agreement (the
"Registration Rights Agreement") with the Issuer (a copy of which is attached
hereto as Exhibit E and incorporated herein by reference in response to this
Item 6) pursuant to which the Issuer has agreed to grant registration rights
with respect to certain securities.
Pursuant to Section 2 of the Registration Rights Agreement, the Issuer
shall cause to be filed a Registration Statement under the Securities Act of
1933 covering Registrable Securities (as defined therein) and providing for the
sale of the Registrable Securities held by Quantum Partners or Quota.
Pursuant to Section 3 of the Registration Rights Agreement if a
majority of the Board of Directors of the Issuer determine, in their good faith
reasonable judgment, that to maintain the effectiveness of the Shelf
Registration or permit the Shelf Registration to become effective would create a
Disadvantageous Condition (as defined therein), the Issuer may, subject to
certain conditions, suspend or withdraw the Shelf Registration.
The foregoing description of the Registration Rights Agreement does
not purport to be complete and is qualified in its entirety by reference to the
Registration Rights Agreement (attached as Exhibit E to this Initial Statement),
which is incorporated herein by reference.
From time to time, each of the Reporting Persons may lend portfolio
securities to brokers, banks or other financial institutions. These loans
typically obligate the borrower to return the securities, or an equal amount of
securities of the same class, to the lender and typically provide that the
borrower is entitled to exercise voting rights and to retain dividends during
the term of the loan. From time to time, to the extent permitted by applicable
laws, each of the Reporting Persons may borrow securities, including the Shares,
for the purpose of effecting, and may effect, short sale transactions, and may
purchase securities for the purpose of closing out short positions in such
securities.
Except as described above and in Items 3 and 4, the Reporting Persons
do not have any contracts, arrangements, understandings or relationships with
respect to any securities of the Issuer.
Item 7. Material to be Filed as Exhibits.
A. Power of Attorney dated as of January 1, 1997 granted by Mr.
Soros in favor of Mr. Sean C. Warren and Mr. Michael C. Neus.
B. Power of Attorney dated as of January 1, 1997 granted by Mr.
Druckenmiller in favor of Mr. Sean C. Warren and Mr. Michael C. Neus.
C. Joint Filing Agreement dated August 9, 1999 by and among SFM LLC,
Mr. Soros, Mr. Druckenmiller, Satellite Asset Management, L.P., Satellite Fund
Management LLC, Mr. Sonnino, Mr. Rosenblatt and Mr. Nechamkin.
D. Joint Plan of Reorganization as amended (filed as Exhibit 2.1 to
the Issuer's Current Report on Form 8-K dated May 27, 1999, Commission File
Number 1-9930) and incorporated herein by reference.
E. Registration Rights Agreement dated June 29, 1999 by and among
the Issuer, Quantum Partners and Quota.
<PAGE>
Page 15 of 39 Pages
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief,
the undersigned certifies that the information set forth in this Statement is
true, complete and correct.
Date: August 9, 1999
SOROS FUND MANAGEMENT LLC
By: /S/ SEAN C. WARREN
----------------------------------
Sean C. Warren
Managing Director
GEORGE SOROS
By: /S/ SEAN C. WARREN
----------------------------------
Sean C. Warren
Attorney-in-Fact
STANLEY F. DRUCKENMILLER
By: /S/ SEAN C. WARREN
----------------------------------
Sean C. Warren
Attorney-in-Fact
<PAGE>
Page 16 of 39 Pages
SATELLITE ASSET MANAGEMENT, L.P.
By: Satellite Fund Management LLC
its General Partner
By: /S/ LIEF D. ROSENBLATT
----------------------------------
Lief D. Rosenblatt
Managing Member
SATELLITE FUND MANAGEMENT LLC
By: /S/ LIEF D. ROSENBLATT
----------------------------------
Lief D. Rosenblatt
Managing Member
MARK SONNINO
/S/ MARK SONNINO
---------------------------------------
LIEF D. ROSENBLATT
/S/ LIEF D. ROSENBLATT
---------------------------------------
GABRIEL NECHAMKIN
/S/ GABRIEL NECHAMKIN
---------------------------------------
<PAGE>
Page 17 of 39 Pages
ANNEX A
The following is a list of all of the persons (other than Stanley
Druckenmiller) who serve as Managing Directors of SFM LLC.
Scott K. H. Bessent
Walter Burlock
Brian J. Corvese
L. Kevin Dann
Gary Gladstein
Ron Hiram
Robert K. Jermain
Sheldon Kasowitz
David N. Kowitz
Carson Levit
Alexander C. McAree
Paul McNulty
Steven Okin
Frank Sica
Sean C. Warren
Each of the above-listed persons is a United States citizen whose
principal occupation is serving as Managing Director of SFM LLC, and each has a
business address c/o Soros Fund Management LLC, 888 Seventh Avenue, 33rd Floor,
New York, New York 10106.
To the best of the Reporting Persons' knowledge:
(a) None of the above persons hold any Shares.
(b) None of the above persons has any contracts, arrangements,
understandings or relationships with respect to the Shares.
<PAGE>
Page 18 of 39 Pages
ANNEX B
The following is a list of all of the persons who serve as Managing
Members of Satellite LLC and the Shares held, if any.
Underlying Shares
-----------------
Mark Sonnino 20,000
Lief D. Rosenblatt 20,000
Gabriel Nechamkin 20,000
Each of the above-listed persons is a United States citizen whose
principal occupation is serving as Managing Member of Satellite LLC, and each
has a business address c/o Satellite Fund Management LLC, 888 Seventh Avenue,
29th Floor, New York, New York 10106.
To the best of the Reporting Persons' knowledge:
(a) The Shares reported above represent the underlying
securities of Director's Options issued in connection with such Director's
appointment to the Board of Directors of the Issuer.
(b) Each of the persons listed above (i) holds the securities
(exercisable into the Shares reported above) for his own account and (ii) has
the sole power to vote or dispose of such securities.
<PAGE>
Page 19 of 39 Pages
EXHIBIT INDEX
Page No.
--------
A. Power of Attorney dated as of January 1, 1997 granted by Mr.
George Soros in favor of Mr. Sean C. Warren and Mr. Michael
C. Neus..................................................... 20
B. Power of Attorney dated as of January 1, 1997 granted by Mr.
Stanley F. Druckenmiller in favor of Mr. Sean C. Warren and
Mr. Michael C. Neus......................................... 21
C. Joint Filing Agreement dated August 9, 1999 by and among
Soros Fund Management LLC, Mr. George Soros, Mr. Stanley F.
Druckenmiller, Satellite Asset Management, L.P., Satellite
Fund Management LLC, Mr. Mark Sonnino, Mr. Lief D.
Rosenblatt, and Mr. Gabriel Nechamkin....................... 22
D. Joint Plan of Reorganization as amended (filed as Exhibit
2.1 to The Penn Traffic Company's Current Report on Form 8-K
dated May 27, 1999, Commission File Number 1-9930) and
incorporated herein by reference
E. Registration Rights Agreement dated June 29, 1999 by and
among The Penn Traffic Company, Quantum Partners LDC and
Quota Fund N.V.............................................. 24
Page 20 of 39 Pages
EXHIBIT A
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, GEORGE SOROS, hereby make, constitute
and appoint each of SEAN C. WARREN and MICHAEL C. NEUS, acting individually, as
my agent and attorney-in-fact for the purpose of executing in my name, (a) in my
personal capacity or (b) in my capacity as Chairman of, member of or in other
capacities with Soros Fund Management LLC, all documents, certificates,
instruments, statements, filings and agreements ("documents") to be filed with
or delivered to any foreign or domestic governmental or regulatory body or
required or requested by any other person or entity pursuant to any legal or
regulatory requirement relating to the acquisition, ownership, management or
disposition of securities or other investments, and any other documents relating
or ancillary thereto, including but not limited to, all documents relating to
filings with the United States Securities and Exchange Commission (the "SEC")
pursuant to the Securities Act of 1933 or the Securities Exchange Act of 1934
(the "Act") and the rules and regulations promulgated thereunder, including: (1)
all documents relating to the beneficial ownership of securities required to be
filed with the SEC pursuant to Section 13(d) or Section 16(a) of the Act
including, without limitation: (a) any acquisition statements on Schedule 13D or
Schedule 13G and any amendments thereto, (b) any joint filing agreements
pursuant to Rule 13d-1(f) and (c) any initial statements of, or statements of
changes in, beneficial ownership of securities on Form 3, Form 4 or Form 5 and
(2) any information statements on Form 13F required to be filed with the SEC
pursuant to Section 13(f) of the Act.
All past acts of the attorney-in-fact in furtherance of the foregoing are hereby
ratified and confirmed.
This power of attorney shall be valid from the date hereof until revoked by me.
IN WITNESS WHEREOF, I have executed this instrument as of the 1st day of
January, 1997.
/s/ George Soros
---------------------------------------
GEORGE SOROS
Page 21 of 39 Pages
EXHIBIT B
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, STANLEY F. DRUCKENMILLER, hereby make,
constitute and appoint each of SEAN C. WARREN and MICHAEL C. NEUS, acting
individually, as my agent and attorney-in-fact for the purpose of executing in
my name, (a) in my personal capacity or (b) in my capacity as Lead Portfolio
Manager of, member of or in other capacities with Soros Fund Management LLC, all
documents, certificates, instruments, statements, filings and agreements
("documents") to be filed with or delivered to any foreign or domestic
governmental or regulatory body or required or requested by any other person or
entity pursuant to any legal or regulatory requirement relating to the
acquisition, ownership, management or disposition of securities or other
investments, and any other documents relating or ancillary thereto, including
but not limited to, all documents relating to filings with the United States
Securities and Exchange Commission (the "SEC") pursuant to the Securities Act of
1933 or the Securities Exchange Act of 1934 (the "Act") and the rules and
regulations promulgated thereunder, including: (1) all documents relating to the
beneficial ownership of securities required to be filed with the SEC pursuant to
Section 13(d) or Section 16(a) of the Act including, without limitation: (a) any
acquisition statements on Schedule 13D or Schedule 13G and any amendments
thereto, (b) any joint filing agreements pursuant to Rule 13d-1(f) and (c) any
initial statements of, or statements of changes in, beneficial ownership of
securities on Form 3, Form 4 or Form 5 and (2) any information statements on
Form 13F required to be filed with the SEC pursuant to Section 13(f) of the Act.
All past acts of the attorney-in-fact in furtherance of the foregoing are hereby
ratified and confirmed.
This power of attorney shall be valid from the date hereof until revoked by me.
IN WITNESS WHEREOF, I have executed this instrument as of the 1st day of
January, 1997.
/s/ Stanley F. Druckenmiller
--------------------------------------------
STANLEY F. DRUCKENMILLER
Page 22 of 39 Pages
EXHIBIT C
JOINT FILING AGREEMENT
The undersigned hereby agree that the statement on Schedule 13D with
respect to the Common Stock of The Penn Traffic Company dated August 9, 1999 is,
and any amendments thereto signed by each of the undersigned shall be, filed on
behalf of each of us pursuant to and in accordance with the provisions of Rule
13d- 1(f) under the Securities Exchange Act of 1934.
Date: August 9, 1999
SOROS FUND MANAGEMENT LLC
By: /S/ SEAN C. WARREN
----------------------------------
Sean C. Warren
Managing Director
GEORGE SOROS
By: /S/ SEAN C. WARREN
----------------------------------
Sean C. Warren
Attorney-in-Fact
STANLEY F. DRUCKENMILLER
By: /S/ SEAN C. WARREN
----------------------------------
Sean C. Warren
Attorney-in-Fact
<PAGE>
Page 23 of 39 Pages
SATELLITE ASSET MANAGEMENT, L.P.
By: Satellite Fund Management LLC
its General Partner
By: /S/ LIEF D. ROSENBLATT
----------------------------------
Lief D. Rosenblatt
Managing Member
SATELLITE FUND MANAGEMENT LLC
By: /S/ LIEF D. ROSENBLATT
----------------------------------
Lief D. Rosenblatt
Managing Member
MARK SONNINO
/S/ MARK SONNINO
---------------------------------------
LIEF D. ROSENBLATT
/S/ LIEF D. ROSENBLATT
---------------------------------------
GABRIEL NECHAMKIN
/S/ GABRIEL NECHAMKIN
---------------------------------------
Page 24 of 39 Pages
REGISTRATION RIGHTS AGREEMENT
-----------------------------
REGISTRATION RIGHTS AGREEMENT dated as of June 29, 1999 (this
"Agreement"), by and among THE PENN TRAFFIC COMPANY, a Delaware corporation (the
"Company"), and the Holders (as hereinafter defined) of Registrable Securities
(as hereinafter defined) who are parties to this Agreement.
This Agreement is being entered into in accordance with the
Plan (as hereinafter defined) in connection with the acquisition of Securities
(as hereinafter defined) by certain holders named on the signature page to this
Agreement (the "Original Holders") pursuant to the Plan. Each Original Holder
owns the aggregate amounts of Securities specified with respect to such Original
Holder in Schedule A hereto as such Schedule A may be amended from time to time.
To induce the holders of Registrable Securites (as hereinafter
defined) to vote in favor of the Plan, the Company has undertaken to register
the Registrable Securities under the Securities Act (as hereinafter defined) and
to take certain other actions with respect to the Registrable Securities. This
Agreement sets forth the terms and conditions of such undertaking.
In consideration of the premises and the mutual agreements set
forth herein, the parties hereto hereby agree as follows:
1. Definitions. Unless otherwise defined herein,
capitalized terms used herein and in the recitals above shall have the following
meanings:
"Affiliate" of a Person means any Person that controls, is
under common control with, or is controlled by, such other Person. For purposes
of this definition, "control" means the ability of one Person to direct the
management and policies of another Person.
"Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to be closed.
"Commission" means the United States Securities and Exchange
Commission, or any successor agency.
"Common Stock" means the Common Stock, $0.01 par value, of the
Company, to be issued pursuant to the Plan, and includes any securities of the
Company issued or issuable with respect to such securities by way of a stock
split, recapitalization, merger, consolidation or other reorganization or
otherwise.
"Effective Date" means the effective date of the Plan pursuant
to the terms thereof.
<PAGE>
Page 25 of 39 Pages
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder, or any similar or successor
statute.
"Expenses" means all expenses incident to the Company's
performance of or compliance with its obligations under this Agreement,
including, without limitation, all registration, filing, listing, securities
exchange and NASD fees, all fees and expenses of complying with state securities
or blue sky laws (including fees, disbursements and other charges of counsel for
the underwriters in connection with blue sky filings), all word processing,
duplicating and printing expenses, messenger and delivery expenses, all rating
agency fees, the fees, disbursements and other charges of counsel for the
Company and of its independent public accountants, including the expenses
incurred in connection with "comfort" letters required by or incident to such
performance and compliance, any fees and disbursements of underwriters
customarily paid by issuers and sellers of securities and the reasonable fees
and disbursements of one firm of counsel (per registration prepared) chosen by
the Holders of a majority of the outstanding Registrable Securities included in
such Registration Statement with respect to disclosure matters, but excluding
underwriting discounts and commissions and applicable transfer taxes, if any,
which discounts, commissions and transfer taxes shall be borne by the seller or
sellers of Registrable Securities in all cases.
"Holders" means (i) the Original Holders and (ii) any
transferees of the Registrable Securities whose Securities continue to be
Registrable Securities, each of whom will be bound by the terms of this
Agreement.
"Initial Shelf Registration" has the meaning set forth in
Section 2 hereof.
"NASD" means the National Association of Securities Dealers,
Inc.
"Person" means any individual, corporation, partnership,
limited liability company, firm, joint venture, association, joint stock
company, trust, unincorporated organization, governmental or regulatory body or
subdivision thereof or other entity.
"Plan" means the Joint Plan of Reorganization of The Penn
Traffic Company, Dairy Dell, Inc., Big M Supermarkets, Inc. and Penny Curtiss
Baking Company, Inc. under Chapter 11 of the United States Bankruptcy Code filed
with the United States Bankruptcy Court for the District of Delaware and
confirmed by such court on May 27, 1999, as the same may be amended, modified or
supplemented from time to time in accordance with the terms thereof.
"Public Offering" means a public offering and sale of
securities pursuant to an effective registration statement under the Securities
Act.
"Registrable Securities" means the Securities held by the
Original Holders (and Transferees of such Securities which are "Holders"
hereunder); provided, however , that Registrable Securities shall cease to be
Registrable Securities (i) upon any sale or distribution thereof pursuant to a
registration statement; (ii) if the Holder thereof is permitted to sell such
<PAGE>
Page 26 of 39 Pages
securities without volume restriction under the Securities Act and any state
securities laws; or (iii) upon the receipt by a Holder of Securities of an
opinion, reasonably satisfactory in form and substance to such Holder, by legal
counsel reasonably acceptable to such Holder, to the effect that the public sale
of such Securities without restriction under the Securities Act and any state
securities laws does not require the registration of such Securities under the
Securities Act and any state securities laws.
"Registration Statement" means a registration statement filed
with the Commission under the Securities Act.
"Securities" means each of the following: (1) a class
comprising shares of Common Stock held as of the date hereof by the stockholders
party hereto; (2) a class comprising (a) Senior Notes held as of the date hereof
by the noteholders party hereto and (b) securities issued or issuable in respect
of the Senior Notes issued, issuable or held pursuant to clause (2)(a) above by
way of interest payments or otherwise; and (3) a class comprising (a) Warrants
held as of the date hereof by the warrantholders party hereto and (b) securities
issued or issuable in respect of the Warrants issued, issuable or held pursuant
to clause (3)(a) above by way of exercise or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization or
otherwise.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations thereunder, or any similar or successor statute.
"Senior Notes" means the 11% Senior Notes due June 29, 2009 of
the Company.
"Subsequent Shelf Registration" has the meaning set forth in
Section 2 hereof.
"Transfer" means any transfer, sale, assignment, pledge,
hypothecation or other disposition of any interest. "Transferor" and
"Transferee" have correlative meanings.
"Warrants" means the Warrants of the Company with an exercise
price of $18.30 per share of Common Stock issued pursuant to the Warrant
Agreement dated as of the date hereof between the Company and Harris Trust and
Savings Bank, as warrant agent.
2. Registration Under the Securities Act.
(a) Initial Shelf Registration. The Company shall (i) cause to
be filed as soon as practicable, but not later than 45 days after the
Effective Date (or such longer time up to 90 days after the Effective
Date as may be required for the Company to prepare the necessary
financial statements), a Registration Statement for an offering to be
<PAGE>
Page 27 of 39 Pages
made on a continuous basis pursuant to Rule 415 under the Securities
Act (the "Initial Shelf Registration") covering all of the Registrable
Securities and providing for the sale of the Registrable Securities by
the Holders thereof and (ii) use its commercially reasonable best
efforts to have such Initial Shelf Registration declared effective by
the Commission as promptly as practicable thereafter.
(b) Subsequent Shelf Registrations. If the Company determines
to terminate the effectiveness of the Initial Shelf Registration prior
to the end of the Effectiveness Period (as defined in Section 2(d)
hereof), then, subject to the provisions of this Agreement, prior to
such termination the Company shall file, and shall use its commercially
reasonable best efforts to cause the Commission to declare effective, a
subsequent Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 under the Securities Act (a
"Subsequent Shelf Registration") covering all of the Registrable
Securities which then remain outstanding. The Subsequent Shelf
Registration shall be filed by the Company at such time, subject to the
provisions of this Agreement, prior to the termination of the
effectiveness of the Initial Shelf Registration which is reasonably
calculated to cause the Subsequent Shelf Registration to become
effective on or before the date on which the effectiveness of the
Initial Shelf Registration terminates.
(c) Amendments to Initial Shelf Registration or Subsequent
Shelf Registrations. If the Initial Shelf Registration (except as
provided in Section 2(b)) or any Subsequent Shelf Registration ceases
to be effective for any reason at any time during the Effectiveness
Period (as defined in Section 2(d) hereof) for any reason (other than
because of the sale of all of the Registrable Securities covered
thereby or all of such Securities no longer constituting Registrable
Securities), the Company shall use its commercially reasonable best
efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof or take such other actions as may be necessary to
reinstate the effectiveness thereof, and in any event shall, within 60
days of such cessation of effectiveness, either (i) amend such Initial
Shelf Registration or Subsequent Shelf Registration in a manner
reasonably calculated to obtain the withdrawal of the order suspending
the effectiveness thereof, or (ii) file a Subsequent Shelf Registration
covering all Registrable Securities which remain unsold. (Each of the
Initial Shelf Registration and any Subsequent Shelf Registration filed
pursuant to paragraph 2(b) or this paragraph 2(c) are referred to
individually herein as a "Shelf Registration" and collectively as the
"Shelf Registrations").
(d) Effectiveness Period. Subject to Section 3 hereof, the
Company shall use its best efforts to keep the Shelf Registration
(including the Initial Shelf Registration and/or any Subsequent Shelf
Registration) continuously effective under the Securities Act for a
period of five (5) years following the date on which the Initial Shelf
Registration became effective (the "Effectiveness Period"), or such
shorter period ending when all Registrable Securities covered by the
Initial Shelf Registration have been sold; provided, however , that the
-------- -------
Effectiveness Period shall be extended by any period during which a
Shelf Registration is not in effect or during which sales have been
suspended, whether pursuant to Section 3, Section 5(g) hereof or
otherwise. If a Subsequent Shelf Registration is filed, pursuant to
Section 2(b) or 2(c) hereof, the Company shall use its commercially
reasonable best efforts to cause the Subsequent Shelf Registration to
be declared effective as soon as practicable after such filing and to
keep such Registration Statement continuously effective for a period
after such effectiveness equal to the Effectiveness Period, less the
<PAGE>
Page 28 of 39 Pages
aggregate number of days during which the Initial Shelf Registration or
any Subsequent Shelf Registration was previously in effect. The intent
of this provision is that the Shelf Registration (including the Initial
Shelf Registration and/or any Subsequent Shelf Registration) shall be
in effect for a number of days, in aggregate, equal to five (5) years;
provided, however, that a Shelf Registration shall not be required to
-------- -------
be maintained in effect after none of the Securities eligible to be
included in a Shelf Registration are Registrable Securities.
(e) Supplements and Amendments. The Company shall supplement
or amend the Shelf Registration if (i) required by the rules,
regulations or instructions applicable to the registration form used
for such Shelf Registration, (ii) otherwise required by the Commission,
or (iii) requested to do so in writing by any Holder of Registrable
Securities to the extent necessary to list such Holder as a selling
securityholder in such registration statement.
3. Blackout Periods. With respect to a Shelf Registration
filed or to be filed pursuant to Section 2 hereof, if a majority of the Board of
Directors of the Company shall determine, in its good faith reasonable judgment,
that to maintain the continued effectiveness of such Shelf Registration or to
permit such Shelf Registration to become effective (or if a Subsequent Shelf
Registration is otherwise required to be filed, to file such Shelf Registration)
would be significantly disadvantageous to the Company's financial condition,
business, operations or prospects (a "Disadvantageous Condition") in light of
the existence, or in anticipation, of (i) any acquisition or financing activity
involving the Company, or any subsidiary of the Company, including a proposed
public offering of debt or equity securities, (ii) an undisclosed material
event, the public disclosure of which would have a material adverse effect on
the Company, (iii) a proposed material transaction involving the Company or a
substantial amount of its assets, or (iv) any other circumstance or condition
the disclosure of which would materially disadvantage the Company, and the
existence of which renders a Subsequent Shelf Registration to be filed, or any
Shelf Registration then filed or effective, inadequate as failing to include
material information, then the Company may, until such Disadvantageous Condition
no longer exists (but not with respect to more than four occasions nor for more
than 180 days in the aggregate nor involving more than 60 days in the aggregate
during any continuous 12-month period) cause such Shelf Registration to be
withdrawn and/or cause the right of Holders to make dispositions of Registrable
Securities pursuant to such Shelf Registration to be suspended, or, in the case
of a Subsequent Shelf Registration that has not yet been filed, elect not to
file such Subsequent Shelf Registration; provided, however, that the Company may
not take any such action until the elapse of 120 days following the commencement
of the Effectiveness Period; and provided, further, that the Company may not
take any such action unless it simultaneously takes similar action with respect
to any other Registration Statements of the Company that are then effective or
that are contemplated or required to be filed. If the Company determines to take
any action pursuant to the preceding sentence, the Company shall deliver a
<PAGE>
Page 29 of 39 Pages
notice to each Holder of Registrable Securities covered or to be covered under
such Shelf Registration, which indicates that the Shelf Registration is no
longer effective or usable or will not be filed. Upon the receipt of any such
notice, such Persons shall forthwith discontinue any sale of Registrable
Securities pursuant to such Shelf Registration and any use of the prospectus
contained in such Shelf Registration. If any Disadvantageous Condition shall
cease to exist, the Company shall promptly notify any Holders who shall have
ceased selling Registrable Securities pursuant to an effective Shelf
Registration as a result of such Disadvantageous Condition, indicating such
cessation and disclosing in reasonable detail the nature and outcome of such
Disadvantageous Condition. The Company shall, if any Shelf Registration required
to be filed or maintained under this Agreement has been withdrawn or not filed,
file promptly, at such time as it in good faith deems the earliest practicable
time, a new Shelf Registration covering the Registrable Securities that were
covered by such withdrawn Shelf Registration or to be covered by such unfiled
Shelf Registration.
4. Expenses. The Company shall promptly pay all Expenses in
connection with any registration initiated pursuant to Section 2 or Section 3
hereof, whether or not such registration becomes effective.
5. Registration Procedures. If and whenever the Company is
required to effect any registration under the Securities Act as provided in
Section 2 hereof, the Company shall, as expeditiously as possible (subject to
Section 3 hereof):
(a) promptly prepare and file with the Commission the
requisite registration statement to effect such registration and,
subject to the provisions of this Agreement, thereafter use its
commercially reasonable best efforts to cause such registration
statement to become effective; provided, however, that the Company may
-------- -------
discontinue any registration of its securities that are not Registrable
Securities at any time prior to the effective date of the registration
statement relating thereto;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Securities
Act with respect to the offering of all Registrable Securities covered
by such registration statement until the end of the Effectiveness
Period, subject to the provisions of this Agreement, or, if earlier,
such time as all of such Registrable Securities have been disposed of
in accordance with the method of disposition set forth in such
registration statement;
(c) furnish to each seller of Registrable Securities covered
by such registration statement such number of copies of such
registration statement and of each amendment and supplement thereto (in
each case including all exhibits and any documents incorporated by
reference), such number of copies of the prospectus contained in such
registration statement (including each preliminary prospectus, each
final prospectus and any supplement to any prospectus) and any other
prospectus filed under Rule 424 under the Securities Act, in conformity
<PAGE>
Page 30 of 39 Pages
with the requirements of the Securities Act, and such other documents,
as such seller may reasonably request in writing;
(d) use its commercially reasonable best efforts (i) to
register or qualify all Registrable Securities and other securities
covered by such registration statement under such other securities or
blue sky laws of such states or other jurisdictions of the United
States of America as the Holders of a majority of the Registrable
Securities covered by such registration statement shall reasonably
request in writing, (ii) to keep such registration or qualification in
effect for so long as such registration statement remains in effect and
(iii) to take any other action that may be reasonably necessary or
advisable to enable the sellers of Registrable Securities to consummate
the disposition in such jurisdictions of the securities to be sold by
such sellers, except that the Company shall not for any such purpose be
required to qualify generally to do business as a foreign corporation
in any jurisdiction wherein it would not but for the requirements of
this subsection (d) be obligated to be so qualified, to subject itself
to taxation in such jurisdiction or to consent to general service of
process in any such jurisdiction;
(e) use its commercially reasonable best efforts to cause all
Registrable Securities covered by such registration statement to be
registered with or approved by such other federal or state governmental
agencies or authorities as may be necessary in the opinion of counsel
to the Company and counsel to the sellers of Registrable Securities to
enable such sellers to consummate the offering of such Registrable
Securities;
(f) use its good faith efforts to obtain and, if obtained,
furnish a copy to each seller of Registrable Securities of
(i) an opinion of counsel for the Company,
dated the effective date of such registration statement,
reasonably satisfactory in form and substance to counsel to
the Holders chosen by Holders of a majority of the Registrable
Securities being registered, and
(ii) a "comfort" letter, dated the effective
date of such registration statement, signed by the independent
public accountants who have certified the Company's financial
statements included or incorporated by reference in such
registration statement, reasonably satisfactory in form and
substance to counsel to the Holders chosen by Holders of a
majority of the Registrable Securities being registered,
in each case, covering substantially the same matters with respect to
such registration statement (and the prospectus included therein) and,
in the case of the accountants' comfort letter, with respect to events
subsequent to the date of such financial statements and matters
contained in such registration statement, as are customarily covered in
opinions of issuer's counsel and in accountants' comfort letters
<PAGE>
Page 31 of 39 Pages
delivered to selling securityholders in connection with the sale of
securities pursuant to "shelf" registration statements;
(g) notify the sellers of Registrable Securities under the
Shelf Registration (providing, if requested by any such Persons,
confirmation in writing) as soon as practicable after becoming aware
of: (A) the filing of any prospectus or prospectus supplement or the
filing or effectiveness (or anticipated date of effectiveness) of such
registration statement or any post-effective amendment thereto; (B) any
request by the Commission for amendments or supplements to such
registration statement or the related prospectus or for additional
information; (C) the issuance by the Commission of any stop order
suspending the effectiveness of such registration statement or the
initiation of any proceedings for the purpose; (D) the receipt by the
Company of any notification with respect to the suspension of the
qualification or registration (or exemption therefrom) of any
Registrable Securities for sale in any jurisdiction in the United
States or the initiation or threatening of any proceeding for such
purposes; or (E) the happening of any event that makes any statement
made in such registration statement or in any related prospectus,
prospectus supplement, amendment or document incorporated therein by
reference untrue in any material respect or that requires the making of
any changes in such registration statement or in any such prospectus,
supplement, amendment or other such document so that it will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein (in the case of any prospectus in the light of the
circumstances under which they were made) not misleading;
(h) otherwise comply with all applicable rules and regulations
of the Commission and any other governmental agency or authority having
jurisdiction over the offering, and make available to its security
holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months, but not more than
eighteen months, beginning with the first full calendar month after the
effective date of such registration statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act and
Rule 158 promulgated thereunder;
(i) enter into customary agreements and take all such other
reasonable actions in connection therewith in order to expedite or
facilitate the disposition of the Registrable Securities included in
such registration statement;
(j) make every reasonable effort to obtain the withdrawal of
any order or other action suspending the effectiveness of any such
registration statement or suspending the qualification or registration
(or exemption therefrom) of the Registrable Securities for sale in any
jurisdiction;
(k) if any event described in subsection (g) hereof occurs,
use its best efforts (subject to Section 3 hereof) to cooperate with
the Commission to prepare, as soon as practicable, any amendment or
supplement to such registration statement or such related prospectus in
<PAGE>
Page 32 of 39 Pages
order that such registration statement and prospectus, as so amended or
supplemented, shall not include any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, or to take other action
that may have been requested by the Commission; and
(l) use its commercially reasonable best efforts to cause all
such Registrable Securities covered by such registration statement to
be listed on any national securities exchange or included in any
automated quotation system on which securities of the same class issued
by the Company are then listed or included (if the listing or inclusion
of such Registrable Securities is then permitted under the rules of
such exchange or interdealer quotation system).
It shall be a condition precedent to the obligations of the
Company to take action pursuant to this Agreement that the selling Holders shall
furnish to the Company in writing such information regarding themselves and the
Registrable Securities held by them, and the intended method of disposition of
such securities, as shall be required to effect the registration of their
Registrable Securities.
Following a registration pursuant to Section 2 hereof, each
Holder agrees that as of the date that a final prospectus is made available to
it for distribution to prospective purchasers of Registrable Securities it shall
cease to distribute copies of any preliminary prospectus prepared in connection
with the offer and sale of such Registrable Securities. Each Holder further
agrees that, upon receipt of any notice from the Company of the happening of any
event of the kind described in subsection (g) of this Section 5, such Holder
shall forthwith discontinue such Holder's disposition of Registrable Securities
pursuant to the registration statement relating to such Registrable Securities
until such Holder's receipt of the copies of the supplemented or amended
prospectus contemplated by subsection (k) of this Section 5 and, if so directed
by the Company, shall deliver to the Company (at the Company's expense) all
copies, other than permanent file copies, then in such Holder's possession of
the prospectus relating to such Registrable Securities current at the time of
receipt of such notice.
6. Preparation; Reasonable Investigation.
(a) Registration Statements. In connection with the
preparation and filing of each registration statement under the
Securities Act pursuant to this Agreement, the Company shall give a
representative designated by Holders of a majority of the Registrable
Securities registered under such registration statement (the
"Representative"), the underwriters, if any, and its respective counsel
and accountants the reasonable opportunity to participate in the
preparation of such registration statement, each prospectus included
therein or filed with the Commission, and each amendment thereof or
supplement thereto, and shall give each of them such reasonable access
to its books and records and such reasonable opportunities to discuss
the business of the Company with its officers and the independent
public accountants who have certified its financial statements as shall
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be necessary, in the reasonable opinion of any such Representative's
and such underwriters' respective counsel, to conduct a reasonable
investigation within the meaning of the Securities Act.
(b) Confidentiality. Each Holder of Registrable Securities
shall maintain the confidentiality of any confidential information
received from or otherwise made available by the Company to such Holder
of Registrable Securities pursuant to this Agreement and identified in
writing by the Company as confidential and shall enter into such
confidentiality agreements as the Company shall reasonably request.
Information that (i) is or becomes available to a Holder of Registrable
Securities from a public source, (ii) is disclosed to a Holder of
Registrable Securities by a third-party source whom the Holder of
Registrable Securities reasonably believes has the right to disclose
such information or (iii) is or becomes required to be disclosed by a
Holder of Registrable Securities by law, including, but not limited to,
administrative or court orders, shall not be deemed to be confidential
information for purposes of this Agreement; provided, however, that to
the extent sufficient time is available prior to such disclosure being
required to be made pursuant to clause (iii) hereof, the Holders of
Registrable Securities shall (to the extent not legally prohibited from
doing so) promptly notify the Company of any request for disclosure and
any proposed disclosure pursuant to such clause (iii). The Holders of
Registrable Securities shall not grant access, and the Company shall
not be required to grant access, to information under this Section 6 to
any Person who will not agree to maintain the confidentiality (to the
same extent a Holder is required to maintain the confidentiality) of
any confidential information received from or otherwise made available
to it by the Company or the holders of Registrable Securities under
this Agreement and identified in writing by the Company as
confidential.
7. Indemnification.
(a) Indemnification by the Company. In connection with any
registration statement filed by the Company pursuant to Section 2
hereof, the Company shall, and hereby agrees to, indemnify and hold
harmless, each Holder and seller of any Registrable Securities covered
by such registration statement and each other Person, if any, who
controls such Holder or seller for purposes of the Securities Act or
the Exchange Act, and their respective directors, officers, partners,
agents and Affiliates (each, a "Company Indemnitee" for purposes of
this Section 7(a)), against any losses, claims, damages, liabilities
(or actions or proceedings, whether commenced or threatened, in respect
thereof and whether or not such Company Indemnitee is a party thereto),
joint or several, and expenses, including, without limitation, the
reasonable fees, disbursements and other charges of legal counsel and
reasonable out-of-pocket costs of investigation, to which such Company
Indemnitee may become subject under the Securities Act or otherwise
(collectively, a "Loss" or "Losses"), insofar as such Losses arise out
of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any registration statement under
which Registrable Securities were registered pursuant to this
Agreement, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto,
including any documents incorporated by reference in any of the
foregoing (collectively, "Offering Documents"), or any omission or
alleged omission to state therein a material fact required to be stated
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Page 34 of 39 Pages
therein or necessary to make the statements therein in the light of the
circumstances in which they were made not misleading; provided,
--------
however, that the Company shall not be liable in any such case to the
-------
extent that any such Loss arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission
made in such Offering Documents in reliance upon and in conformity with
written information furnished to the Company in writing by or on behalf
of such Company Indemnitee specifically stating that it is expressly
for use therein. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such Company
Indemnitee and shall survive the transfer of such securities by such
Company Indemnitee. The Company shall also indemnify any underwriters
of the Registrable Securities, their officers, directors and employees,
and each Person who controls any such underwriter (within the meaning
of the Securities Act and the Exchange Act) to the same extent as
provided above with respect to the indemnification of the Holders of
Registrable Securities.
(b) Indemnification by the Sellers. In connection with any
registration statement filed by the Company pursuant to Section 2
hereof in which a Holder has registered for sale Registrable
Securities, each such Holder or seller of Registrable Securities,
severally and not jointly, shall, and hereby agrees to, indemnify and
hold harmless the Company and each of its directors, officers,
employees and agents, each other Person who participates as an
underwriter in the offering or sale of such securities, each other
Person, if any, who controls the Company, any such underwriter and each
other seller (within the meaning of the Securities Act) and such
underwriter's or other seller's directors, officers, stockholders,
partners, employees, agents and affiliates (each a "Holder Indemnitee"
for purposes of this Section 7(b)), against all Losses insofar as such
Losses arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in any Offering Documents
or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein in the light of circumstances in which they were made not
misleading, if such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of such Holder or seller of Registrable Securities specifically
stating that it is expressly for use therein; provided, however, that
-------- -------
the liability of such indemnifying party under this Section 7(b) shall
be limited to the amount of the net proceeds received by such
indemnifying party in the offering giving rise to such liability. Such
indemnity shall remain in full force and effect, regardless of any
investigation made by or on behalf of the Holder Indemnitee and shall
survive the transfer of such securities by such Holder.
(c) Notices of Losses, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or
proceeding involving a Loss referred to in the preceding subsections of
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Page 35 of 39 Pages
this Section 7, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party, give written
notice to the latter of the commencement of such action; provided,
--------
however, that the failure of any indemnified party to give notice as
-------
provided herein shall not relieve the indemnifying party of its
obligations under the preceding subsections of this Section 7, except
to the extent that the indemnifying party is actually prejudiced by
such failure to give notice. In case any such action is brought against
an indemnified party, the indemnifying party shall be entitled to
participate in and, unless in such indemnified party's counsel's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such Loss, to assume and
control the defense thereof, in each case at its own expense, jointly
with any other indemnifying party similarly notified, to the extent
that it may wish, with counsel reasonably satisfactory to such
indemnified party, and after notice from such indemnifying party of its
assumption of the defense thereof, the indemnifying party shall not be
liable to such indemnified party for any legal or other expenses
subsequently incurred by the latter in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying
party shall be liable for any settlement of any such action or
proceeding effected without its written consent, which shall not be
unreasonably withheld, delayed or conditioned. No indemnifying party
shall, without the consent of the indemnified party, consent to entry
of any judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or plaintiff
to such indemnified party of a release from all liability in respect of
such Loss or which requires action on the part of such indemnified
party or otherwise subjects the indemnified party to any obligation or
restriction to which it would not otherwise be subject.
(d) Contribution. If the indemnification provided for in this
Section 7 shall for any reason be unavailable to an indemnified party
under subsection (a) or (b) of this Section 7 in respect of any Loss,
then, in lieu of the amount paid or payable under subsection (a) or (b)
of this Section 7, the indemnified party and the indemnifying party
under subsection (a) or (b) of this Section 7 shall contribute to the
aggregate Losses (including legal or other expenses reasonably incurred
in connection with investigating the same) in such proportion as is
appropriate to reflect the relative fault of the Company and the
sellers of Registrable Securities covered by the registration statement
which resulted in such Loss or action in respect thereof, with respect
to the statements, omissions or action which resulted in such Loss or
action in respect thereof, as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information supplied by the indemnifying party or the
indemnified party and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such untrue
statement or omission. The parties hereto agree that it would not be
just and equitable if contributions were to be determined by any method
of allocation which does not take account of the equitable
considerations referred to in this paragraph. The amount paid by an
indemnified party as a result of the Losses referred to in the first
sentence of this paragraph shall be deemed to include any legal and
other expenses reasonably incurred by such indemnified party in
<PAGE>
Page 36 of 39 Pages
connection with investigation or defending any Loss which is the
subject of this paragraph. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who
was not guilty of such fraudulent misrepresentation. In addition, no
Person shall be obligated to contribute hereunder any amounts in
payment for any settlement of any action or Loss effected without such
Person's consent.
(e) Indemnification Payments. The indemnification and
contribution required by this Section 7 shall be made by periodic
payments of the amount thereof during the course of any investigation
or defense, as and when bills are received or any Loss is incurred.
8. Registration Rights to Others. If the Company shall at any
time hereafter provide to any holder of any securities of the Company rights
with respect to the registration of such securities under the Securities Act or
the Exchange Act, such rights shall not be in conflict with or adversely affect
any of the rights provided in this Agreement to the holders of Registrable
Securities.
9. Adjustments Affecting Registrable Securities.
The Company shall not effect or permit to occur any
combination, subdivision or reclassification of Registrable Securities that
would materially adversely affect the ability of the Holders to include such
Registrable Securities in any registration of its securities under the
Securities Act contemplated by this Agreement or the marketability of such
Registrable Securities under any such registration or other offering.
10. Rule 144 and Rule 144A. Prior to the expiration of the
Effectiveness Period, the Company shall take all actions reasonably necessary to
enable Holders to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (a) Rule 144
under the Securities Act, as such Rule may be amended from time to time, (b)
Rule 144A under the Securities Act, as such Rule may be amended from time to
time, or (c) any similar rules or regulations hereafter adopted by the
Commission, including, without limiting the generality of the foregoing, filing
on a timely basis all reports required to be filed under the Exchange Act. Upon
the request of any Holder, the Company shall deliver to such Holder a written
statement as to whether it has complied with such requirements. This paragraph
is in addition to and not in derogation of any rights the Holders may have under
any other agreement.
11. Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
<PAGE>
Page 37 of 39 Pages
may not be given, unless the Company shall have obtained the prior written
consent of the Holders of at least a majority of the Registrable Securities
affected by such amendment, modification or waiver.
12. Nominees for Beneficial Owners. In the event that any
Registrable Security is held by a nominee for the beneficial owner thereof, the
beneficial owner thereof may, at its election in writing delivered to the
Company, be treated as the Holder of such Registrable Security for purposes of
any request or other action by any Holder or Holders pursuant to this Agreement
or any determination of the number or percentage of Registrable Securities held
by any Holder or Holders contemplated by this Agreement. If the beneficial owner
of any Registrable Securities so elects, the Company may require assurances
reasonably satisfactory to it of such owner's beneficial ownership of such
Registrable Securities.
13. Assignment. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
heirs, successors and assigns including any successor by merger to the Company.
Any Holder may assign to any permitted Transferee of its Registrable Securities
holding Registrable Securities its rights and obligations under this Agreement,
provided that such Transferee shall deliver to the Company prior to such
assignment a written instrument in which such Transferee agrees to be bound by
this Agreement as if it were an original party hereto, whereupon such Transferee
shall for all purposes be deemed to be a Holder under this Agreement.
14. Calculation of Percentage of Outstanding Registrable
Securities. For purposes of this Agreement, all references to an aggregate
number of Registrable Securities or a percentage thereof shall be calculated
based upon the aggregate number of Registrable Securities of such class
outstanding at the time such calculation is made and shall exclude any
Registrable Securities or shares of Common Stock, as the case may be, owned by
the Company or any subsidiary of the Company.
15. Miscellaneous.
(a) Further Assurances. Each of the parties hereto shall
execute such documents and other papers and perform such further acts
as may be reasonably required or desirable to carry out the provisions
of this Agreement and the transactions contemplated hereby.
(b) Headings. The headings in this Agreement are for
convenience of reference only and shall not control or affect the
meaning or construction of any provisions hereof.
(c) Remedies. Each Holder, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will
be entitled to specific performance of its rights under this Agreement.
The Company agrees that monetary damages would not be adequate
<PAGE>
Page 38 of 39 Pages
compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and the Company hereby agrees to waive the
defense in any action for specific performance that a remedy at law
would be adequate.
(d) Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties hereto in respect of the
subject matter contained herein, and there are no restrictions,
promises, representations, warranties, covenants, or undertakings with
respect to the subject matter hereof, other than those expressly set
forth or referred to herein. This Agreement supersedes all prior
agreements and understandings between the parties hereto with respect
to the subject matter hereof.
(e) Notices. Any notices or other communications to be given
hereunder by any party to another party shall be in writing, shall be
delivered personally, by telecopy, by certified or registered mail,
postage prepaid, return receipt requested, or by Federal Express or
other comparable delivery service, to the address of the party set
forth on Schedule B hereto or to such other address as the party to
whom notice is to be given may provide in a written notice to the other
parties hereto, a copy of which shall be on file with the Secretary of
the Company. Notice shall be effective when delivered if given
personally, when receipt is acknowledged if telecopied, three days
after mailing if given by registered or certified mail as described
above, and one business day after deposit if given by Federal Express
or comparable overnight delivery service.
(f) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE TO BE PERFORMED ENTIRELY IN SUCH STATE,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE COMPANY AND THE
PARTIES EACH HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY NEW
YORK STATE COURT SITTING IN THE CITY OF NEW YORK OR ANY FEDERAL COURT
SITTING IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH
IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID
COURTS, IN EACH CASE SOLELY IN RESPECT OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. NOTHING HEREIN
SHALL AFFECT THE RIGHT OF ANY PARTY TO SERVE PROCESS IN ANY MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED
AGAINST THE COMPANY IN ANY OTHER JURISDICTION.
(g) Severability. If one or more of the provisions contained
herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable in any respect, for any reason, the
validity, legality and enforceability of the remaining provisions
contained herein shall not be in any way affected or impaired thereby,
and the provision held to be invalid, illegal or unenforceable shall be
<PAGE>
Page 39 of 39 Pages
reformed to the minimum extent necessary, and in a manner as consistent
with the purposes thereof as is practicable, so as to render it valid,
legal and enforceable, it being intended that all rights and
obligations of the parties hereunder shall be enforceable to the
fullest extent permitted by law.
(h) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of
which shall constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
THE PENN TRAFFIC COMPANY
By /S/ THE PENN TRAFFIC COMPANY
-------------------------------------------
Name:
Title:
HOLDERS:
QUANTUM PARTNERS LDC
By /S/ QUANTUM PARTNERS LDC
------------------------------------------
Name:
Title:
QUOTA FUND NV
By /S/ QUOTA FUND NV
------------------------------------------
Name:
Title:
