-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, EPpdXIjH3+1IrG4bCVKPgG3bCw3TSWXWwy+FmDCOsatZG7bPxzJ5ygwPxLBsfuiB 6jt4hJ+JAf87z9B82U42aw== 0000950142-07-000327.txt : 20070201 0000950142-07-000327.hdr.sgml : 20070201 20070201110312 ACCESSION NUMBER: 0000950142-07-000327 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20070126 ITEM INFORMATION: Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers ITEM INFORMATION: Regulation FD Disclosure ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20070201 DATE AS OF CHANGE: 20070201 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: DE FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-08858 FILM NUMBER: 07570501 BUSINESS ADDRESS: STREET 1: 1200 STATE FAIR BLVD CITY: SRYACUSE STATE: NY ZIP: 13221-4737 BUSINESS PHONE: 8145369900 MAIL ADDRESS: STREET 1: 1200 STATE FAIR BLVD CITY: SYRACUSE STATE: NY ZIP: 13221-4737 8-K 1 form8k_012607.txt CURRENT REPORT ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of report (Date of earliest event reported): JANUARY 26, 2007 THE PENN TRAFFIC COMPANY - -------------------------------------------------------------------------------- (Exact Name of Registrant as Specified in Its Charter) DELAWARE - -------------------------------------------------------------------------------- (State or Other Jurisdiction of Incorporation) 001-9930 25-0716800 - -------------------------------------------------------------------------------- (Commission File Number) (IRS Employer Identification No.) 1200 STATE FAIR BOULEVARD SYRACUSE, NEW YORK 13221-4737 - -------------------------------------------------------------------------------- (Address of Principal Executive Offices) (Zip Code) (315) 453-7284 - -------------------------------------------------------------------------------- (Registrant's Telephone Number, Including Area Code) N/A - -------------------------------------------------------------------------------- (Former Name or Former Address, if Changed Since Last Report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (SEE General Instruction A.2. below): |_| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |_| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |_| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) ================================================================================ ITEM 5.02 DEPARTURE OF DIRECTORS OR CERTAIN OFFICERS; ELECTION OF DIRECTORS; APPOINTMENT OF CERTAIN OFFICERS; COMPENSATORY ARRANGEMENTS OF CERTAIN OFFICERS. On January 26, 2007, Randy P. Martin, Senior Vice President-Finance of The Penn Traffic Company (the "Company"), resigned from his position with the Company, effective immediately, to pursue other interests. In connection with his resignation, Mr. Martin has been offered a severance arrangement whereby he will be entitled to receive 52 weeks of severance as well as other customary benefits. In addition, he will agree to make himself available to provide services to the Company on a limited basis until January 26, 2008 and in connection therewith will be paid a fee of up to $10,000 for any such services provided during that period. As required by law, Mr. Martin has seven days following his execution of the severance agreement that describes this arrangement to elect to revoke such agreement. A copy of the severance agreement presented to Mr. Martin is attached hereto as Exhibit 99.1 and is incorporated by reference herein. The Company will file an amendment to this Current Report on Form 8-K if Mr. Martin elects to revoke such agreement or if the agreement entered into materially differs from Exhibit 99.1 hereto. Effective January 26, 2007, the Company appointed Ben Jones to act as its interim chief financial officer while the Company completes its recruiting process underway and finds a successor. Mr Jones is 35 years old and is currently a Managing Director at Conway, Del Genio, Gries & Co. ("CDG"). Mr. Jones has been a Managing Director with CDG since 2004. From 2001 until 2004, Mr. Jones was a Vice President at CDG. Mr. Jones and others at CDG have been providing financial advisory services to the Company since October 2006. To date CDG has received aggregate fees and expense reimbursements from the Company in connection with such services of approximately $650,000. ITEM 7.01 REGULATION FD DISCLOSURE On January 31, 2007, the Company issued a press release with regard to the matters discussed in Item 5.02 above. A copy of that press release is attached hereto as Exhibit 99.2. ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS (d) Exhibits The following is attached as an exhibit to this Current Report on Form 8-K: EXHIBIT DESCRIPTION ------- ----------- 99.1 Form of Severance Agreement between Randy Martin and The Penn Traffic Company. 99.2 Press Release dated January 31, 2007 SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on behalf by the undersigned hereunto duly authorized. THE PENN TRAFFIC COMPANY By: /s/ Robert Panasuk ------------------------------ Name: Robert Panasuk Title: Chief Executive Officer Dated: February 1, 2007 EXHIBIT INDEX EXHIBIT DESCRIPTION ------- ----------- 99.1 Form of Severance Agreement between Randy Martin and The Penn Traffic Company. 99.2 Press Release dated January 31, 2007 EX-99 2 ex99-1form8k_012607.txt EXHIBIT 99.1 EXHIBIT 99.1 ------------ SEPARATION AGREEMENT AGREEMENT made this ____ day of _______, ____ (hereinafter referred to as the "Agreement"), by and between RANDY P. MARTIN, Senior Vice President - Finance (hereinafter referred to as "Martin"), and THE PENN TRAFFIC CO., INC. (hereinafter referred to as "Penn Traffic" or the "Company"). W I T N E S S E T H : WHEREAS, Martin has been employed as Senior Vice President -- Finance and WHEREAS, the Company and Martin now desire to end the employment relationship and the parties wish to resolve amicably all outstanding issues, rights and obligations by and between them and to embody those understandings in this Agreement. NOW, THEREFORE, in consideration of the premises and of the representations, promises and obligations herein contained, the parties hereto agree as follows: 1. (a) The parties agree that Martin has resigned his employment with the Company on January 26, 2007 (the "Resignation Date") and that Martin has resigned as an officer of the Company and its subsidiaries, to the extent he held such positions. The Company agrees to continue to pay Martin an amount equal to fifty-two weeks of his base salary at the current rate (the "Severance Payment"), less deductions, on the Company's regular pay days. The Severance Payment shall be paid in equal installments over a fifty-two week period commencing after the expiration of the Revocation Period set forth below. (b) Throughout the fifty-two week severance period, the Company shall also continue to provide Martin all other benefits that he would be entitled to as an employee, including, but not limited to, group health insurance, life insurance, and 401(k) contributions, as set forth in the Company's Severance Policy, a copy of which is appended hereto as Exhibit A. (c) In the event of (i) the sale of all the shares of the common stock of the Company, (ii) the merger or other business combination of the Company with or into another entity with the Company not the surviving entity, (iii) the sale of all or substantially all of the assets of the Company, or (iv) the discontinuance of the business of the Company for whatever reason, the remaining weekly payments due Martin shall immediately become due and payable in a lump sum, with normal payroll deductions being withheld. (d) The Company shall continue to cover Martin as a former officer of the Company under the Company's Directors and Officers Liability Insurance Policy and the indemnification provisions in the By-Laws of the Company, but only to the extent provided in the Directors and Officers Liability Insurance Policy and By-laws. The Company agrees to pay for the services of Martin in connection with any government investigations, but only to the extent provided in the Directors and Officers Liability Insurance Policy and By-laws. 2. During the fifty-two weeks following the Revocation Period, Martin agrees he shall make himself available for consultation with the Company by correspondence or telephone and, if necessary, by meetings at such times and locations as may be reasonably requested by the Company. The total number of hours of services to be provided by Martin shall not exceed 100 over the course of the fifty-two week period, and no more than 10 hours in a given week. In the event that Martin provides any services to the Company, he shall be paid one hundred dollars ($100.00) per hour and shall be reimbursed for all reasonable expenses. 3. As a condition of this Agreement and the payments provided for in it, Martin will be required to maintain the confidentiality of business information and trade secrets of the Company and its subsidiaries and affiliates. 4. Martin represents that as of the Resignation Date, he will have returned all property of the Company, including but not limited to, any computers, telephones, documents, books, records (whether in electronic format or hard copy), reports, files, correspondence, notebooks, manuals, notes, specifications, mailing lists, credit cards and data in his possession or control. 5. In consideration of the receipt of the Severance Payment, and other benefits set forth herein and pursuant to the Company's Severance Policy, Martin, for himself and for the executors and administrators of his estate, his heirs, successors and assigns, hereby releases and forever discharges the Company and its officers, directors, employees and stockholders and the respective executors, administrators, heirs, successors and assigns of the foregoing, from any and all claims, actions, causes of action, suits, sums of money, debts, dues, accounts, reckonings, bonds, bills, covenants, contracts, controversies, agreements, promises, demands or damages of any nature whatsoever or by reason of any matter, cause or thing regardless of whether known or unknown at present, which against the Company or any of its officers, directors, employees or stockholders Martin ever had, now has or hereafter can, shall or may have for, upon, or by reason of, any matter, cause or thing whatsoever from the beginning of the world to the date hereof including, but not limited to, any matter relating to or arising out of the employment of Martin or resignation thereof under any contract, tort, federal, state or local fair employment practices or civil rights law including, but not limited to, Title VII of the Civil Rights Act of 1964, as amended, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Older Workers Benefits Protection Act, the federal Family and Medical Leave Act, the New York State Human Rights Law, the New York City Human Rights Law, or any claim for physical or emotional distress or injuries, or any other duty or obligation of any kind or description, including any implied covenant of good faith and fair dealing, implied contract of permanent employment or the tortious or willful discharge of employment. The parties also agree that this Agreement does not either affect the rights and responsibilities of the Equal Employment Opportunity Commission to enforce the Age Discrimination in Employment Act, or justify interfering with the protected right of an employee to file a charge or participate in an investigation or proceeding conducted by the Equal Employment Opportunity Commission under the Age Discrimination in Employment Act. In the event the Equal Employment Opportunity Commission commences a proceeding against the Company in which Martin is a named party, Martin agrees to waive and forego any monetary claims which may be alleged by the Equal Employment Opportunity Commission to be owed to Martin. The parties also agree that nothing in the provisions of this paragraph is intended to limit their rights under and concerning enforcement of this Agreement. 6. Martin agrees to keep confidential the terms of this Agreement and not to disclose any term of this Agreement to any other person or entity, except for Martin's family, accountants and attorneys. In the event that Martin is required by law to disclose any term of this Agreement, Martin agrees to give the Company ten days' written notice prior to any such disclosure, or such shorter time period as mandated by law or is otherwise practicable. 7. Martin shall not make any statements, either directly or through other persons or entities, which are disparaging to the Company or any of its affiliates, management, officers, directors, services, products, operations, prospects or other matters relating to the Company's businesses. The Company, through its officers and directors, shall not make any statements, either directly or through other persons or entities, which are disparaging to Martin. 8. The Company has advised Martin to consult with an attorney prior to executing this Agreement. By executing this Agreement, Martin acknowledges that (a) he has been provided an opportunity to consult with an attorney or other advisor of his choice regarding the terms of this Agreement, (b) this is a final offer and Martin has been given twenty-one (21) days in which to consider whether he wishes to enter into this Agreement, (c) Martin has elected to enter this Agreement knowingly and voluntarily and (d) if he does so within fewer than twenty-one (21) days from receipt of the final document he has knowingly and voluntarily waived the remaining time. The Company reserves the right to change or revoke this Agreement prior to Martin's execution hereof. This Agreement shall be fully effective and binding upon all parties hereto immediately upon execution of this Agreement except as to rights or claims arising under the ADEA, in which case Martin has seven (7) days following execution of this Agreement to change his mind (the "Revocation Period"). 9. In the event that any one or more of the provisions of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby. This Agreement will survive the termination of any arrangements contained herein and is binding on and will inure to the benefit of each of the parties and their respective affiliates, heirs, executors, administrators, successors and assigns. 10. The parties agree that the provisions of the Company's Severance Policy, a copy of which is appended hereto as Exhibit A, is made a part of this Agreement. 11. This Agreement shall be governed by the substantive laws of the State of New York, without giving effect to any principles of conflicts of law. 12. Each of the parties agrees to do and perform or cause to be done and performed all further acts and shall execute and deliver all other documents necessary on its part to carry out the intent and accomplish the purposes of this Agreement and the transaction contemplated hereby. IN WITNESS WHEREOF, the parties have each executed this Agreement as of the date first written above. THE PENN TRAFFIC CO., INC. By: ------------------- Bob Panasuk ----------------------- Randy P. Martin EX-99 3 ex99-2form8k_012607.txt EXHIBIT 99.2 EXHIBIT 99.2 ------------ [GRAPHIC OMITTED - LOGO THE PENN TRAFFIC COMPANY FOR IMMEDIATE RELEASE CONTACT: Marc Jampole Jampole Communications, Inc. 412-471-2463 PENN TRAFFIC ENGAGED IN CFO SEARCH SYRACUSE, NEW YORK - The Penn Traffic Company announced that Randy P. Martin, Senior Vice President-Finance, resigned from his position at the Company, effective January 26, 2007, to pursue other interests. Ben Jones, currently a Managing Director at Conway, Del Genio, Gries & Co., will serve as interim chief financial officer while Penn Traffic completes the process of recruiting a replacement for Mr. Martin. Mr. Jones and others at Conway, Del Genio, Gries & Co. have been providing financial advisory services to the Company since October 2006. FORWARD LOOKING STATEMENTS This press release contains forward-looking statements, as defined in the Private Securities Litigation Reform Act of 1995, as amended, reflecting management's current analysis and expectations, based on what management believes to be reasonable assumptions. These forward-looking statements include statements relating to our anticipated financial performance and business prospects. Statements preceded by, followed by or that include words such as "believe," "anticipate," "estimate," "expect," "could," and other similar expressions are to be considered such forward-looking statements. Forward-looking statements may involve known and unknown risks, uncertainties and other factors, which may cause the actual results to differ materially from those projected, stated or implied, depending on such factors as: the ability of the Company to improve its operating performance and effectuate its business plans; the ability of the Company to operate pursuant to the terms of its credit facilities and to comply with the terms of its lending agreements or to amend or modify the terms of such agreements as may be needed from time to time; its ability to generate cash; its ability to attract and maintain adequate capital; its ability to refinance; increases in prevailing interest rates; the ability of the Company to obtain trade credit, and shipments and terms with vendors and service providers for current orders; the Company's ability to maintain contracts that are critical to its operations; potential adverse developments with respect to the Company's liquidity or results of operations; general economic and business conditions; competition, including increased capital investment and promotional activity by the Company's competitors; availability, location and terms of sites for store development; the successful implementation of the Company's capital expenditure program; labor relations; labor and employee benefit costs including increases in health care and pension costs and the level of contributions to the Company sponsored pension plans; the result of the pursuit of strategic alternatives; economic and competitive uncertainties; changes in strategies; changes in generally accepted accounting principles; adverse changes in economic and political climates around the world, including terrorist activities and international hostilities; and the outcome of pending or yet-to-be-instituted legal proceedings and governmental investigations, including the previously announced SEC and U.S. Attorney's Office investigations. The Company cautions that the foregoing list of important factors is not exhaustive. Accordingly, there can be no assurance that the Company will meet future results, performance or achievements expressed or implied by such forward-looking statements. This paragraph is included to provide safe harbor for forward-looking statements, which are not generally required to be publicly revised as circumstances change, and which the Company does not intend to update. ************************************************************************ The Penn Traffic Company operates 108 supermarkets in Pennsylvania, upstate New York, Vermont and New Hampshire under the BiLo, P&C and Quality trade names. Penn Traffic also operates a wholesale food distribution business serving 43 Big M stores, 29 associate stores and 48 independent operators and Penny Curtiss, a Syracuse-based commercial bakery. Contact: Jampole Communications, Inc. Marc Jampole, 412-471-2463 -----END PRIVACY-ENHANCED MESSAGE-----