-----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, QvDhvSkqdcHyoW+aIQYkkDsxq0jBHPIdfNeiqGxJbvFEFFj+2i/Gj0STtOhYmfRJ L2V9C2A0xaPK1+HB9VceGw== 0000950142-07-001062.txt : 20070507 0000950142-07-001062.hdr.sgml : 20070507 20070507161959 ACCESSION NUMBER: 0000950142-07-001062 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20070507 ITEM INFORMATION: Regulation FD Disclosure ITEM INFORMATION: Other Events ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20070507 DATE AS OF CHANGE: 20070507 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: 07824230 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_050707.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) MAY 7, 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 7.01 REGULATION FD DISCLOSURE On May 7, 2007, The Penn Traffic Company ("Penn Traffic" or the "Company") issued a press release, a copy of which is attached as Exhibit 99.1 hereto and is incorporated by reference herein. ITEM 8.01 OTHER EVENTS In an amended Schedule 13D, dated May 4, 2007, filed by Bay Harbour Management, L.C., Bay Harbour Master Ltd. and Trophy Hunter Investments, Ltd. (collectively, the "Bay Harbour Group"), the Bay Harbour Group stated that it had "suggested that [Penn Traffic] increase the number of directors and elect a designee of the [Bay Harbour Group] to fill the vacancy, which [Penn Traffic] has refused to do on terms satisfactory to the [Bay Harbour Group]." By letter dated April 23, 2007 from Bob Kelly, Chairman of the Board of Penn Traffic, to Bay Harbour Management, L.C. ("Bay Harbour"), a copy of which is attached as Exhibit 99.2 to this Current Report on Form 8-K and incorporated by reference herein, Penn Traffic expressly invited a representative of Bay Harbour to serve on the Board of Directors of Penn Traffic. As a condition to providing Bay Harbour's board designee with confidential information regarding the Company (which the designee would receive as a member of the Penn Traffic Board), the Company requested that Bay Harbour first enter into a customary confidentiality agreement. Thus far, Bay Harbour has declined to enter into such an agreement. In light of Bay Harbour's significant ownership position in Penn Traffic, the Penn Traffic Board believes that providing Bay Harbour with access to the Company's confidential information, without restricting the actions that Bay Harbour may take once it receives such information, would not be in the best interest of all of Penn Traffic's stockholders. ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS (d) The following are attached as exhibits to this Current Report on Form 8-K: EXHIBIT DESCRIPTION ------- ----------- 99.1 Press Release dated May 7, 2007. 99.2 Letter, dated April 23, 2007, from Bob Kelly, Chairman of the Board of Penn Traffic, to Bay Harbour. 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/ Daniel J. Mahoney ----------------------------- Name: Daniel J. Mahoney Title: VP, General Counsel Dated: May 7, 2007 EXHIBIT INDEX EXHIBIT DESCRIPTION ------- ----------- 99.1 Press Release dated May 7, 2007. 99.2 Letter, dated April 23, 2007, from Bob Kelly, Chairman of the Board of Penn Traffic, to Bay Harbour. EX-99 2 ex99-1form8k_050707.txt EXHIBIT 99.1 EXHIBIT 99.1 ------------ [GRAPHIC OMITTED -- LOGO] THE PENN TRAFFIC COMPANY FOR IMMEDIATE RELEASE CONTACT: Michael Barone Susan Asquith Travers Collins & Co. 716-842-2222 BAY HARBOUR PREVIOUSLY OFFERED SEAT ON PENN TRAFFIC BOARD (PENN TRAFFIC RESPONDS TO BAY HARBOUR ASSERTION) SYRACUSE, NEW YORK - MAY 7, 2007 - The Penn Traffic Company (OTC: PTFC) announced today that, contrary to Bay Harbour's recent disclosure, Penn Traffic has in fact offered a board seat to a designee of Bay Harbour. In an amended Schedule 13D, dated May 4, 2007, filed by Bay Harbour Management, L.L.C., Bay Harbour Master Ltd. and Trophy Hunter Investments, Ltd. (collectively, the "Bay Harbour Group"), the Bay Harbour Group stated that it had "suggested that [Penn Traffic] increase the number of directors and elect a designee of the [Bay Harbour Group] to fill the vacancy, which [Penn Traffic] has refused to do on terms satisfactory to the [Bay Harbour Group]." Contrary to this assertion, by letter dated April 23, 2007 from Bob Kelly, Chairman of the Board of Penn Traffic, to Bay Harbour Management, L.L.C., Penn Traffic expressly invited a representative of Bay Harbour to serve on the Board of Directors of Penn Traffic. As a condition to providing Bay Harbour's board designee with confidential information regarding the Company (which the designee would receive as a member of the Penn Traffic Board), the Company has requested that Bay Harbour first enter into a customary confidentiality agreement. Thus far, Bay Harbour has declined to enter into such an agreement. In light of Bay Harbour's significant ownership position in Penn Traffic, the Penn Traffic Board believes that providing Bay Harbour with access to the Company's confidential information, without restricting the actions that Bay Harbour may take once it receives such information, would not be in the best interest of all of Penn Traffic's stockholders. In addition, Bob Kelly noted that he believes the current Penn Traffic Board has made significant progress in overseeing the Company, and believes the Company has been very active and responsive to the concerns of its shareholders. In particular, he noted that the Board has hired a new CEO, replaced the Company's CFO and hired other members of senior 1 management, has replaced the Company's auditors, and has conducted two shareholder information calls regarding the current status of the Company. 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 proceeded 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; the ability of the Company to generate cash; the ability of the Company to attract and maintain adequate capital; the ability of the Company 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 ability of the Company 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; the ability of the Company to pursue 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 the commencement of any new, legal proceedings against, or governmental investigations of the Company, 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. The Company does not necessarily intend to update these factors. ****************************************************************************** The Penn Traffic Company operates 106 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 approximately 120 independent operators and Penny Curtiss, a Syracuse-based commercial bakery. 2 EX-99 3 ex99-2form8k_050707.txt EXHIBIT 99.2 EXHIBIT 99.2 ------------ THE PENN TRAFFIC COMPANY 1200 STATE FAIR BOULEVARD SYRACUSE, N.Y. 13209 April 23, 2007 Mr. Kurt Cellar Bay Harbour Management, L.C. 885 Third Avenue, 34th Floor New York, NY 10022 Dear Kurt: Thank you for your call to Bob Panasuk regarding your proposal to designate an additional independent director to the Board of Penn Traffic. As you know, the Penn Traffic Board currently includes five directors that have no affiliation with the Company other than their directorships, and we see no reason to add yet a sixth independent director to the Board. We believe the current Board has made significant progress in overseeing the Company. In particular, this Board has hired a new CEO, has replaced the Company's CFO and hired other members of senior management; has replaced the Company's auditors; has managed the ongoing SEC investigation; and has conducted two shareholder information calls regarding the current status of the Company. In short, we believe the Company has been very active and responsive to your concerns. Accordingly, I am writing to follow up on our discussions regarding the current draft of the Confidentiality Agreement and your potential position on the Board of Penn Traffic. As I would hope you would recognize, we, together with our advisor, have attempted to be responsive to you and accommodate your requests, while at the same time being mindful of our fiduciary duties to all of our stockholders, including Bay Harbour. As we have consistently told you, we have welcomed, and will continue to welcome, your thoughtful input and suggestions to Penn Traffic. We would further be prepared to invite you to serve on our Board of Directors. However, we would need Bay Harbour to enter into a customary confidentiality agreement with us before we can provide you with this type of access. In order to avoid any misunderstandings, attached for your consideration is the form of Confidentiality Agreement that Penn Traffic is prepared to enter into in connection with providing you with confidential information relating to the Company. As I trust you appreciate, we respect your position as a significant stockholder of the Company and have tried to address your concerns in this 1 draft. For example, although we have required that any party desiring to receive confidential information of the Company enter into a standstill, in the proposed Confidentiality Agreement we have offered to narrow the standstill provisions, and have attempted to tailor these provisions in a manner that would give Bay Harbour more flexibility in its dealings with Penn Traffic. We believe we have been as responsive to your concerns as we can while also being mindful of our obligations to the Company's other stockholders. I understand from our counsel that you have indicated you are still troubled by entering into the attached Agreement. We would hope that you would reconsider and accept our invitation to join our Board. I look forward to hearing from you. Best regards, /s/ Bob Kelly -------------- Bob Kelly cc: Douglas A. Cifu 2 -----END PRIVACY-ENHANCED MESSAGE-----