-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, MpJK6XBTYbCZCT+LAtsEW7xU2L1+OtjT7slNjhINkXZLMI/ENZGAlf5YuGZxiVDz PaT/RYQ+p2NcYQXvl6MV2A== 0000906416-94-000081.txt : 19941215 0000906416-94-000081.hdr.sgml : 19941215 ACCESSION NUMBER: 0000906416-94-000081 CONFORMED SUBMISSION TYPE: 8-A12B PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 19941214 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: PENN TRAFFIC CO CENTRAL INDEX KEY: 0000077155 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-GROCERY STORES [5411] IRS NUMBER: 250716800 STATE OF INCORPORATION: PA FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: 8-A12B SEC ACT: 1934 Act SEC FILE NUMBER: 001-09930 FILM NUMBER: 94564808 BUSINESS ADDRESS: STREET 1: 319 WASHINGTON STREET CITY: JOHNSTOWN STATE: PA ZIP: 15901 BUSINESS PHONE: 8145369900 MAIL ADDRESS: STREET 1: 1200 STATE FAIR BLVD CITY: SYRACUSE STATE: NY ZIP: 13221-4737 8-A12B 1 FORM 8-A SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------------------------------------- FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES PURSUANT TO SECTION 12(B) OR (G) OF THE SECURITIES EXCHANGE ACT OF 1934 THE PENN TRAFFIC COMPANY ------------------------------------------------------ (Exact name of registrant as specified in its charter) Delaware 25-0716800 ---------------------------------------- ---------------- (State of incorporation or organization) (I.R.S. Employer Identification Number) 1200 State Fair Boulevard, Syracuse, NY 13221 ---------------------------------------- ---------- (Address of principal executive offices) (Zip Code) Securities to be registered pursuant to Section 12(b) of the Act: Title of each class Name of each exchange on which to be so registered each class is to be registered ------------------- ------------------------------ Common stock, par New York Stock Exchange value $1.25 per share Securities to be registered pursuant to Section 12(g) of the Act: None ---------------- (Title of Class) ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED The Penn Traffic Company (the "Company") is authorized to issue up to 30,000,000 shares of Common Stock, par value $1.25 per share. Dividends may be paid with respect to the Common Stock when and if declared by the Company's Board of Directors out of funds properly available therefor, subject to restrictions upon the payment of dividends contained in the Company's bank debt agreement and in the indentures (the "Indentures") relating to the Company's 9 5/8% Senior Subordinated Notes due 1999 (the "9 5/8% Senior Subordinated Notes"), the Company's 11 1/2% Senior Notes due 2001 (the "11 1/2% Senior Notes"), the Company's 10 1/4% Senior Notes due 2002 (the "10 1/4% Senior Notes"), the Company's 8 5/8% Senior Notes due 2003 (the "8 5/8% Senior Notes"), the Company's 10 3/8% Senior Notes due 2004 (the "10 3/8% Senior Notes"), and the Company's 10.65% Senior Notes due 2004 (the "10.65% Senior Notes"). See "Certain Restrictions" below. Holders of shares of Common Stock do not have preemptive or other subscription rights, or redemption or conversion rights; however, such holders would participate ratably in any distribution of assets to holders thereof in a liquidation after payment in respect of any preferred shares then outstanding. Each share of Common Stock is entitled to one vote on all matters on which shareholders are entitled or permitted to vote, including the election of directors, for which there are no cumulative voting rights. The Company's Certificate of Incorporation and By-Laws provide that its Board of Directors, other than those directors who may be elected only by the holders of Preferred Stock (as defined below), is divided into three classes of directors, with the terms of office of the directors of each class staggered so that only one class is elected each year. The transfer agent and registrar for the Common Stock is Harris Trust Company of New York, 77 Water Street, New York, New York 10005. 11,904,963 shares of Common Stock have been listed on the American Stock Exchange, Inc. The Company presently intends to withdraw such shares from such listing subsequent to such time as the Company's Common Stock is admitted to trading on the New York Stock Exchange, Inc. Preferred Stock The Company's authorized capital stock includes 10,000,000 shares of Preferred Stock, par value $1.00 per share (the "Preferred Stock"). No shares of Preferred Stock are currently outstanding. The Board of Directors of the Company has the authority by resolution to issue shares of Preferred Stock in one or more series, and to fix the number of shares constituting any such series, the voting powers, designations, preferences and relative participating, optional or other special rights and qualifications, limitations or restrictions thereof, including the dividend rights, dividend rate, ranking, terms of redemption (including sinking fund provisions), redemption price or prices, conversion rights and liquidation preferences of the shares constituting any series, without any further vote or action by the shareholders of the Company. Certain Restrictions The indentures relating to the 9 5/8% Senior Subordinated Notes (the "9 5/8% Note Indenture"), the 11 1/2% Senior Notes (the "11 1/2% Note Indenture"), the 10 1/4% Senior Notes (the 10 1/4% Note Indenture"), the 8 5/8% Senior Notes and the 10.65% Senior Notes (the "Senior Debt Securities Indenture"), and the 10 3/8% Senior Notes (the "10 3/8% Note Indenture") contain certain covenants restricting the payment of dividends or other distributions on the Company's capital stock. In addition, the Company's bank debt agreement contains covenants restricting the payment of dividends and requires that the Company meet certain financial tests including minimum net worth, minimum interest coverage and maximum capital expenditures. With certain exceptions, the 9 5/8% Note Indenture limits the payment of dividends and other distributions on, and the purchase of, capital stock (other than dividends or distributions in capital stock of the Company) to 50% of Consolidated Net Income (or minus 100% in the event of a deficit) plus the aggregate net proceeds from sales of capital stock; provided that no such payment or distribution may be made unless the Company could incur at least $1.00 of indebtedness under a covenant which limits the Company's and certain subsidiaries' ability to incur indebtedness (generally based on a pro forma fixed charge coverage ratio test). For purposes of this test, Consolidated Net Income is defined generally as cumulative consolidated net income after May 2, 1993 of the Company and of such subsidiaries of the Company as are not designated "Unrestricted Subsidiaries" by the Board of Directors of the Company. With certain exceptions, the 11 1/2% Note Indenture limits the payment of dividends and other distributions on, and the purchase of, capital stock (other than dividends or distributions in capital stock of the Company) to 50% of Consolidated Net Income (or minus 100% in the event of a deficit) plus the aggregate net proceeds from sales of capital stock; provided that no such payment or distribution may be made unless the Company could incur at least $1.00 of indebtedness under a covenant which limits the Company's and certain subsidiaries' ability to incur indebtedness (generally based on a pro forma fixed charge coverage ratio test). For purposes of this test, Consolidated Net Income is defined generally as cumulative consolidated net income on or after November 3, 1991 of the Company and of such subsidiaries of the Company as are not designated "Unrestricted Subsidiaries" by the Board of Directors of the Company. With certain exceptions, the 10 1/4% Note Indenture limits the payment of dividends and other distributions on, and the purchase of, capital stock (other than dividends or distributions in capital stock of the Company) to 50% of Consolidated Net Income (or minus 100% in the event of a deficit) plus the aggregate net proceeds from sales of capital stock; provided that no such payment or distribution may be made unless the Company could incur at least $1.00 of indebtedness under a covenant which limits the Company's and certain subsidiaries' ability to incur indebtedness (generally based on a pro forma fixed charge coverage ratio test). For purposes of this test, Consolidated Net Income is defined generally as cumulative consolidated net income on or after February 2, 1992 of the Company and of such subsidiaries of the Company as are not designated "Unrestricted Subsidiaries" by the Board of Directors of the Company. With certain exceptions, the Senior Debt Securities Indenture limits the payment of dividends and other distributions on, and the purchase of, capital stock (other than dividends or distributions in capital stock of the Company) to 50% of Consolidated Net Income (or minus 100% in the event of a deficit) plus the aggregate net proceeds from sales of capital stock; provided that no such payment or distribution may be made unless the Company could incur at least $1.00 of indebtedness under a covenant which limits the Company's and certain subsidiaries' ability to incur indebtedness (generally based on a pro forma fixed charge coverage ratio test). For purposes of this test, Consolidated Net Income is defined generally as cumulative consolidated net income after October 31, 1993 for purposes of the 8 5/8% Senior Notes and after July 31, 1994 for purposes of the 10.65% Senior Notes of the Company and of such subsidiaries of the Company as are not designated "Unrestricted Subsidiaries" by the Board of Directors of the Company. With certain exceptions, the 10 3/8% Note Indenture limits the payment of dividends and other distributions on, and the purchase of, capital stock (other than dividends or distributions in capital stock of the Company) to 50% of Consolidated Net Income (or minus 100% in the event of a deficit) plus the aggregate net proceeds from sales of capital stock; provided that no such payment or distribution may be made unless the Company could incur at least $1.00 of indebtedness under a covenant which limits the Company's and certain subsidiaries' ability to incur indebtedness (generally based on a pro forma fixed charge coverage ratio test). For purposes of this test, Consolidated Net Income is defined generally as cumulative consolidated net income accrued on or after August 2, 1992 of the Company and of such subsidiaries of the Company as are not designated "Unrestricted Subsidiaries" by the Board of Directors of the Company. The Company's bank debt agreement provides that, with certain exceptions, the Company may not make, or incur any liability to make, any distribution, including any dividend, redemption or repurchase on or of its capital stock. As of December 14, 1994, no dividend payments could have been made under the limitations on payment of dividends described above. Business Combinations The Company's Certificate of Incorporation provides that the Company will be governed by Section 203 of the Delaware General Corporation Law (the "DGCL"), as it may be amended from time to time ("Section 203"). Section 203 provides that any person who acquires 15% of the outstanding voting stock of a Delaware corporation becomes an "interested stockholder," and the corporation may not effect mergers or other "business combinations" with the interested stockholder for a period of three years unless (i) prior to the date the acquiror becomes an interested stockholder, the board of directors approves either the business combination or the transaction which results in the stockholder becoming an interested stockholder, (ii) the interested stockholder is able, by means of the tender offer or other transaction by which the acquiror becomes an interested stockholder, to acquire ownership of at least 85% of the outstanding voting stock of the corporation (excluding in that calculation shares owned by directors of the corporation who are also officers and shares owned by certain employee stock plans), or (iii) on or subsequent to the date such stockholder became an interested stockholder, the board of directors approves a business combination which is authorized by a vote of the holders of two-thirds of the outstanding stock not held by the interested stockholder. The definition of interested stockholder does not include (i) persons who owned 15% of the voting stock before December 23, 1987, (ii) persons who received more than 15% of the voting stock as a gift or bequest of the person who owned it before that date, or (iii) persons whose ownership of the voting stock rises over the 15% threshold as a result of action taken by the corporation unless that person thereafter acquires additional shares. A "business combination" is defined broadly in the DGCL and includes any merger or consolidation caused by an interested stockholder in which the surviving corporation will not be subject to Section 203, and the sale, lease, exchange, mortgage, pledge, transfer or other disposition to an interested stockholder of any assets of a corporation having a market value equal to or greater than 10% of the aggregate market value of either the assets or the outstanding stock of the corporation. "Business combination" is also defined to include (i) issuances or transfers of stock of the corporation or a subsidiary thereof to an interested stockholder (except for transfers in connection with certain conversions and issuances, transfers, certain exchanges and certain pro rata distributions which do not increase the interested stockholder's proportionate ownership of the stock of the corporation), and (ii) any receipt by an interested stockholder (except proportionately as a stockholder) of any loans, advances, guarantees, pledges or other financial benefits. As of October 1994, to the knowledge of the Company, the only person who beneficially owned 15% or more of the outstanding shares of Common Stock was Gary D. Hirsch. The Board of Directors of the Company approved the business combination which resulted in such stockholder becoming an interested stockholder, and the acquisition of the Common Stock thereby, prior to such business combination. Thus, Gary D. Hirsch (to the extent that he is deemed to be an "interested stockholder" pursuant to Section 203) is not subject to the restrictions of Section 203. ITEM 2. EXHIBITS 1. All exhibits required by Instruction II to Item 2 will be supplied to the New York Stock Exchange. SIGNATURES ---------- Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereto duly authorized. THE PENN TRAFFIC COMPANY Dated: December 14, 1994 By: /s/ Martin A. Fox ----------------------- Martin A. Fox Vice Chairman, Finance -----END PRIVACY-ENHANCED MESSAGE-----