-----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, I0hF/EtGO9neVelebkgV5RUi9TM5hsA+EAvZ4/egFJkI3WkIbGu54NZJNM9GfSp/ 2J/21DwhDauLz5WHikPvzg== 0000950142-07-001092.txt : 20070509 0000950142-07-001092.hdr.sgml : 20070509 20070509170158 ACCESSION NUMBER: 0000950142-07-001092 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20070503 ITEM INFORMATION: Entry into a Material Definitive Agreement 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: 20070509 DATE AS OF CHANGE: 20070509 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: 07833279 BUSINESS ADDRESS: STREET 1: 1200 STATE FAIR BLVD CITY: SYRACUSE STATE: NY ZIP: 13221-4737 BUSINESS PHONE: (315) 453-7284 MAIL ADDRESS: STREET 1: 1200 STATE FAIR BLVD CITY: SYRACUSE STATE: NY ZIP: 13221-4737 8-K 1 form8k_050307.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 3, 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 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT. On May 2, 2007, The Penn Traffic Company (the "Company") delivered an offer letter to Tod Nestor with respect to his employment as Senior Vice President -Chief Financial Officer of the Company (the "Offer Letter"), which offer was accepted by Mr. Nestor on May 3, 2007. Pursuant to the Offer Letter, Mr. Nestor's employment with the Company will commence on May 14, 2007. Pursuant to the Offer Letter, Mr. Nestor will be entitled to receive an annual salary of $275,000 as well as a sign-on bonus of $50,000, "grossed up," payable in three installments, the first installment of 50% to be payable upon the date he commences his employment in Syracuse, NY, the second installment of 25% to be payable three months thereafter and the final installment of 25% to be payable six months thereafter. In addition to participation in the Company's 401(K), health insurance and other employee benefits programs, Mr. Nestor will be entitled to participate in the Company's Management Performance Incentive Program (Bonus), pursuant to which he will be eligible to receive 45% of his base salary up to a maximum of 90%. He will also be entitled to receive $15,000 "grossed up" after 60 days of employment in lieu of a company car, up to $2,500 per month plus expenses for up to nine months for temporary housing expenses, as well as 52 weeks of severance. A copy of the Offer Letter is attached as Exhibit 99.1 hereto and is incorporated by reference herein. ITEM 5.02 DEPARTURE OF DIRECTORS OR PRINCIPAL OFFICERS; ELECTION OF DIRECTORS; APPOINTMENT OF PRINCIPAL OFFICERS. Effective May 14, 2007, Mr. Nestor was appointed Senior Vice President - Chief Financial Officer of the Company. In connection with Mr. Nestor's appointment, the Company delivered the Offer Letter, the material terms of which are described under Item 1.01 of this Current Report on Form 8-K and are incorporated herein by reference. Mr. Nestor is 44 years old. From 2005 until most recently, Mr. Nestor served at American Eagle Outfitters, Inc. as Vice President, Strategic Planning and Treasurer, and as Vice President Finance and Controller. From 2003 until 2005, Mr. Nestor served at H.J. Heinz as Vice President Continuous Improvement, and as Vice President Corporate Planning. Prior to that, Mr. Nestor held various executive and leadership positions in the areas of finance, treasury and operations at Bacardi Ltd., WR Grace, Stern Stewart & Co. and PepsiCo, Inc. (including Pizza Hut subsidiary). Other than as disclosed in this Item 5.02, there have been no transactions between Mr. Nestor or any member of his family and the Company since the beginning of the Company's last fiscal year. Additionally, there are no family relationships between Mr. Nestor and any director or executive officer of the Company. 2 In connection with Mr. Nestor's appointment, Ben Jones, who had been acting as the Company's interim chief financial officer while it was seeking a candidate for a permanent position, resigned from his position with the Company, effective May 14, 2007. ITEM 7.01 REGULATION FD DISCLOSURE On May 9, 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) The following are attached as exhibits to this Current Report on Form 8-K: EXHIBIT DESCRIPTION ------- ----------- 99.1 Offer Letter, dated May 2, 2007, between the Company and Tod Nestor, accepted on May 3, 2007. 99.2 Press Release, dated May 9, 2007. 3 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 9, 2007 4 EXHIBIT INDEX EXHIBIT DESCRIPTION ------- ----------- 99.1 Offer Letter, dated May 2, 2007, between the Company and Tod Nestor, accepted on May 3, 2007. 99.2 Press Release, dated May 9, 2007. 5 EX-99 2 ex99-1form8k_050307.txt EXHIBIT 99.1 EXHIBIT 99.1 ------------ [GRAPHIC OMITTED] [LOGO - THE PENN TRAFFIC COMPANY] May 2, 2007 Mr. Tod A. Nestor 2127 North Villa Court Gibsonia, PA 15044 Dear Tod, On behalf of Robert Panasuk, President and CEO, we are pleased to offer you the position of SENIOR VICE PRESIDENT, CHIEF FINANCIAL OFFICER. Your employment will commence on May 14, 2007. While this letter is not a contractual agreement, it does contain the major elements of our offer to you. 1. SALARY. Your starting salary will be $275,000.00 per year, less applicable withholdings, with a performance and salary review within the first six months of employment in this role. 2. SIGN-ON BONUS. $50,000 "grossed up," payable in 3 installments. First payment of 50% upon date you start work in Syracuse, 25% after 3 months, and the final payment after 6 months. 3. MANAGEMENT PERFORMANCE INCENTIVE PROGRAM (BONUS). 45% of base at 100% of Plan and increasing to 90% incrementally by exceeding the plan. 4. RELOCATION PLAN. At your option, not to exceed three and one-half years for eligibility for Enhanced Executive Relocation Plan, "grossed up." 5. MISCELLANEOUS EXPENSES. In lieu of company car, Perm Traffic will provide $15,000 "grossed up" to you after 60 days of employment. Company will pay for temporary housing not to exceed $2,500 per month and reasonable travel home expenses for up to nine months. 6. BENEFITS. Medical, Dental, Vision, and Prescription coverage: effective on date of hire. Term Life (Co. Paid)*: After 31 days of continuous service, Company paid, 1 1/2 times salary. Page 2 Supplemental Life*: After 31 days of continuous service. Employee paid 1X or 2X or 3X salary. (Max. $650,000). Short Term Disability: Effective on date of hire. Weeks 1 through 17, 100% of salary. For weeks 18 through 26, NYS Statutory benefits. Long Term Disability: Effective on date of hire following 120 days of disability, $5,000/mo max. (Company paid) The combined maximum for Basic and Supplemental Life is $650,000. The flexible spending program will be available to you the first pay period of 2008. 7. 401(K) PLAN. Effective after 6 months of employment. Subject to the limits required by law and the Plan: a) may defer from 1 - 25% of salary, tax deferred; b) Company to match 50% of the first 3% of employee deferral after 1 year of employment. You may defer up to the maximum dollar amount allowed by law each year. In addition, once you have completed 6 months of service, The Penn Traffic Company will make a contribution of 3 percent of your total compensation to your 401(k) plan each year. If you choose not to participate in the 401(k) plan, an account will be set up for you for the 3 percent contribution. 8. VACATION. You will be eligible for (four) 4 weeks paid vacation per year. 9. PENN TRAFFIC HOLIDAYS: Per Company plan, currently six (6). 10. 5% Employee Discount 11. SEVERANCE PLAN. Fifty-two (52) weeks of severance according to Company policy. 12. CHANGE OF CONTROL. You will need to complete the document that will be provided to you upon your date of hire. Your signature will need to be witnessed here. 13. STOCK. You will participate in the company "Omnibus" plan and receive stock commensurate with your position at the time when the plan is executed for the management team. 14. ANNUAL PAY AND PERFORMANCE REVIEW. Beginning of each fiscal year with rest of management team. Page 3 It is important to reiterate that this letter is an offer of employment, and in no way should be construed to be an employment contract for definite term. Employment at The Penn Traffic Company is at-will, subject to termination by the Company or you at any time. We look forward to you joining The Penn Traffic team. If you have any questions regarding this offer letter or the position, please contact me directly. Sincerely, /s/ Christine McMahon - ------------------------ Christine McMahon Vice President, Human Resources & Labor Relations The Penn Traffic Company Tod Nestor: To acknowledge and accept the terms of this letter, please sign one copy of this letter and retain the second copy for your files. Please return to my attention by Thursday May 3, 2007. I, TOD A. NESTOR accept this offer on this 3rd day of May, 2007. /s/ Tod A. Nestor - ------------------------ Tod A. Nestor cc: Bob Panasuk EX-99 3 ex99-2form8k_050307.txt EXHIBIT 99.2 EXHIBIT 99.2 ------------ [GRAPHIC OMITTED] [LOGO - THE PENN TRAFFIC COMPANY] - ------------------------------------------------------------------------------- FOR IMMEDIATE RELEASE CONTACT: Michael Barone Susan Asquith Travers Collins & Co. 716-842-2222 - ------------------------------------------------------------------------------- FORMER AMERICAN EAGLE OUTFITTERS FINANCIAL EXECUTIVE JOINS PENN TRAFFIC AS SENIOR VICE PRESIDENT AND CFO SYRACUSE, NEW YORK, MAY 9, 2007 --- The Penn Traffic Company (OTC: PTFC) today announced that Tod A. Nestor will be joining Penn Traffic as Senior Vice President and Chief Financial Officer. "Tod Nestor is an accomplished financial executive who has deep experience in all areas of finance, and has demonstrated a keen ability to lead, develop and build top tier teams," said Bob Panasuk, President and Chief Executive Officer of Penn Traffic. "Tod will add a wealth of experience and skills to our senior management team as a result of his experience in working on and with Wall Street, demonstrating the ability to develop and implement innovative approaches to financial analysis and strategy and his high sense of urgency and accountability in delivering operational results that will ultimately drive Penn Traffic's financial performance." As Senior Vice President and Chief Financial Officer, Nestor will report directly to Bob Panasuk, President and CEO, and be responsible for managing all responsibilities in Penn Traffic's finance function. Prior to joining Penn Traffic Mr. Nestor was Vice President Strategic Planning and Treasurer, as well as Vice President Finance and Controller at American Eagle Outfitters, Inc. Tod is a licensed CPA, CFA, CMA and CFM and brings over 20 years of financial, operational and general management experience to his role at Penn Traffic, including a variety of industry perspectives inclusive of retail and consumer products. Prior to Mr. Nestor's time with American Eagle Outfitters, he held various executive and leadership positions in the areas of finance, treasury and operations at H.J. Heinz, Bacardi Ltd., WR Grace, Stern Stewart & Co. and PepsiCo, Inc. (including Pizza Hut subsidiary). Specifically, Mr. Nestor has extensive experience in the areas of financial reporting, performance management, planning and analysis; restructurings; strategic planning; mergers and acquisitions; investor relations; treasury and tax planning, and; operations improvement. 1 Mr. Nestor holds a Masters of Business Administration from the Wharton School of the University of Pennsylvania in Finance and Entrepreneurial Management with a concentration in Strategic Planning, and a Bachelors of Business Administration degree in Accounting from the University of Notre Dame. 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 -----END PRIVACY-ENHANCED MESSAGE-----