UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
(Amendment No. 1)
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the fiscal year ended February 24, 2007
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to
Commission file number 1-4141
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
(Exact name of registrant as specified in its charter)
Maryland 13-1890974
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2 Paragon Drive
Montvale, New Jersey 07645
(Address of principal executive offices)
Registrant's telephone number, including area code: 201-573-9700
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Securities registered pursuant to Section 12 (b) of the Act:
Title of each class Name of each exchange on which registered
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Common Stock - $1 par value New York Stock Exchange
7.75% Notes, due April 15, 2007 New York Stock Exchange
9.125% Senior Notes, due December 15, 2011 New York Stock Exchange
9.375% Notes, due August 1, 2039 New York Stock Exchange
Securities registered pursuant to Section 12 (g) of the Act: None
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Indicate by check mark if the registrant is a well-known seasoned
issuer, as defined by Rule 405 of the Securities Act. Yes [ ] No [X]
Indicate by check mark if the registrant is not required to file
reports pursuant to Section 13 of Section 15(d) of the Act. Yes [ ] No [X]
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15 (d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [ X ] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be contained,
to the best of Registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [ ]
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, or a non-accelerated filer. See definition of
"accelerated filer and large accelerated filer" in Rule 12b-2 of the Exchange
Act. (Check one):
Large accelerated filer __ Accelerated filer X Non-accelerated filer ___
---
Indicate by check mark whether the registrant is a shell company
(as defined in Exchange Act Rule 12b-2). Yes [ ] No [X]
The aggregate market value of the voting stock held by non-affiliates
of the Registrant as of the close of business on September 9, 2006, the
registrant's most recently completed second fiscal quarter, was $446,258,519.
The number of shares of common stock outstanding as of the close of
business on April 23, 2007 was 41,796,066.
DOCUMENTS INCORPORATED BY REFERENCE
The information required by Part I, Items 1 and 3, and Part II, Items
5, 6, 7, 7A, 8 and 9A are incorporated by reference from the Registrant's Fiscal
2006 Annual Report to Stockholders, as revised, with respect to Part II, Items
6, 7 and 8 by the Registrant's Current Report on Form 8-K, dated October 24,
2007. The information required by Part III, Items 10, 11, 12, 13, and 14 are
incorporated by reference from the Registrant's Proxy Statement for the 2007
Annual Meeting of Stockholders.
EXPLANATORY NOTE
The Great Atlantic & Pacific Tea Company, Inc. ("the Company") is filing this
amendment to its Annual Report on Form 10-K for the year ended February 24,
2007, initially filed on April 25, 2007, to amend Exhibit 99.2 to such Annual
Report on Form 10-K to add the conformed signature of Ernst & Young LLP to its
report, dated November 3, 2006, except as to note 22 which is dated March 23,
2007, relating to the consolidated financial statements of METRO Inc. as at
September 30, 2006 and for the year then ended.
Except as described above, no other amendments are being made to the Annual
Report, filed on April 25, 2007. This Form 10-K/A does not reflect events
occurring after the April 25, 2007 filing of our Annual Report or modify or
update the disclosures contained in the Annual Report in any way other than as
required to include such conformed signature as described above.
ITEM 15 - Exhibits and Financial Statement Schedules
(a) Documents filed as part of this report:
1) Financial Statements: The following Consolidated Financial
Statements, related Notes and Report of Independent Registered Public
Accounting Firm are included in the Annual Report and are
incorporated by reference to Exhibit 99.1 to the Company's Current
Report on Form 8-K, dated October 24, 2007.
Consolidated Statements of Operations
Consolidated Statements of Stockholders' Equity and
Comprehensive Income (Loss)
Consolidated Balance Sheets
Consolidated Statements of Cash Flows
Notes to Consolidated Financial Statements
Report of Independent Registered Public Accounting Firm
2) Financial Statement Schedule:
Schedule II Valuation and Qualifying Accounts and
Reserves (incorporated herein by reference
to the like-numbered financial statement
schedule filed with the Company's Annual
Report on Form 10-K filed on April 25, 2007)
All other schedules are omitted because they are not required or do
not apply, or the required information is included elsewhere in the
Consolidated Financial Statements or Notes thereto.
3) Exhibits:
The following are filed as Exhibits to this Report:
EXHIBIT NO. DESCRIPTION
2.1 Stock Purchase Agreement, dated as of July 19,
2005, by and among the Company, A&P
Luxembourg S.a.r.l., Metro Inc. and 4296711
Canada Inc. (incorporated herein by reference
to Exhibit 2.1 to Form 8-K filed on July 22,
2005)
3.1 Articles of Incorporation of The Great Atlantic
& Pacific Tea Company, Inc., as amended
through July 1987 (incorporated herein by
reference to Exhibit 3(a) to Form 10-K filed on
May 27, 1988)
3.2 By-Laws of The Great Atlantic & Pacific Tea
Company, Inc., as amended and restated
through October 6, 2005 (incorporated herein by
reference to Exhibit 3.1 to Form 8-K
filed on October 11, 2005)
4.1 Indenture, dated as of January 1, 1991 between
the Company and JPMorgan Chase Bank (formerly The
Chase Manhattan Bank as successor by merger to
Manufacturers Hanover Trust Company), as trustee
(the "Indenture") (incorporated herein by
reference to Exhibit 4.1 to Form 8-K)
4.2 First Supplemental Indenture, dated as of
December 4, 2001, to the Indenture, dated as of
January 1, 1991 between our Company and JPMorgan
Chase Bank, relating to the 7.70% Senior Notes
due 2004 (incorporated herein by reference to
Exhibit 4.1 to Form 8-K filed on December 4,
2001)
4.3 Second Supplemental Indenture, dated as of
December 20, 2001, to the Indenture between our
Company and JPMorgan Chase Bank, relating to the
9 (1)/8% Senior Notes due 2011 (incorporated
herein by reference to Exhibit 4.1 to Form 8-K
filed on December 20, 2001)
4.4 Successor Bond Trustee (incorporated herein by
reference to Exhibit 4.4 to Form 10-K
filed on May 9, 2003)
4.5 Third Supplemental Indenture, dated as of August
23, 2005, to the Indenture between the Company
and Wilmington Trust Company (as successor to
JPMorgan Chase Bank) (incorporated herein by
reference to Exhibit 4.1 to Form 8-K filed on
August 23, 2005)
4.6 Fourth Supplemental Indenture, dated as of August
23, 2005, to the Indenture between the
Company and Wilmington Trust Company (as
successor to JPMorgan Chase Bank) (incorporated
herein by reference to Exhibit 4.2 to Form 8-K
filed on August 23, 2005)
4.7 Credit Agreement dated as of November 15, 2005
between the Company and Bank of America, N.A. as
Administrative Agent and Collateral Agent,
JPMorgan Chase Bank, N.A. as Syndication Agent,
Wachovia Bank, National Association as
Documentation Agent and Banc of America
Securities LLC as Lead Arranger ("Credit
Agreement") (incorporated herein by reference to
Exhibit 4.1 to Form 8-K filed on November 18,
2005 and Item 8.01 to Form 8-K filed April 10,
2006)
4.8 First amendment to Credit Agreement dated March
13, 2006 (incorporated herein by reference to
Exhibit 4.8 to the Annual Report on Form 10-K
filed on April 25, 2007)
4.9 Second amendment to Credit Agreement dated
November 10, 2006 (incorporated herein by
reference to Exhibit 4.9 to the Annual Report on
Form 10-K filed on April 25, 2007)
10.1 Executive Employment Agreement, made and entered
into as of the 15th day of August, 2005, by and
between the Company and Mr. Eric Claus
(incorporated herein by reference to Exhibit 10.1
to Form 8-K filed on September 9, 2005) and a
technical amendment (incorporated herein by
reference to Exhibit 10.1 to Form 10-K filed on
May 9, 2006)
10.2 Employment Agreement, made and entered into as of
the 1st day of November, 2000, by and between the
Company and William P. Costantini ("Costantini
Agreement") (incorporated herein by reference to
Exhibit 10 to Form 10-Q filed on January 16,
2001)
10.3 Amendment to Costantini Agreement dated April 30,
2002 (incorporated herein by reference
to Exhibit 10.7 to Form 10-K filed on July 5,
2002)
10.4 Confidential Separation and Release Agreement by
and between William P. Costantini and The Great
Atlantic & Pacific Tea Company, Inc. dated
November 4, 2004 (incorporated herein by
reference to Exhibit 10.4 to Form 10-Q filed on
January 7, 2005)
10.5 Employment Agreement, made and entered into as of
the 16th day of June, 2003, by and between our
Company and Brenda Galgano (incorporated herein
by reference to Exhibit 10.9 to Form 10-Q filed
on October 17, 2003)
10.6 Employment Agreement, made and entered into as
of the 24th day of February, 2002, by and
between our Company and Mitchell P. Goldstein
(incorporated herein by reference to
Exhibit 10.8 to Form 10-K filed on July 5, 2002)
10.7 Letter Agreement dated September 6, 2005, between
Mitchell P. Goldstein and our Company
(incorporated herein by reference to Exhibit 10.2
to Form 8-K filed on September 9, 2005)
10.8 Employment Agreement, made and entered into as of
the 2nd day of October, 2002, by and
between our Company and Peter Jueptner ("Jueptner
Agreement") (incorporated herein by reference to
Exhibit 10.26 to Form 10-Q filed on October 22,
2002)
10.9 Amendment to Jueptner Agreement dated November
10, 2004 (incorporated herein by reference
to Exhibit 10.8 to Form 10-K filed on May 10,
2005)
10.10 Offer Letter dated the 18th day of September
2002, by and between our Company and Peter
Jueptner (incorporated herein by reference to
Exhibit 10.10 to Form 10-Q filed on January
10, 2003)
10.11 Employment Agreement, made and entered into as of
the 14th day of May, 2001, by and between our
Company and John E. Metzger, as amended February
14, 2002 ("Metzger Agreement") (incorporated
herein by reference to Exhibit 10.13 to Form 10-K
filed on July 5, 2002)
10.12 Amendment to John E. Metzger Agreement dated
October 25, 2004 (incorporated herein by
reference to Exhibit 10.12 to Form 10-K filed on
May 10, 2005)
10.13 Employment Agreement, made and entered into as of
the 25th day of January, 2006, by and between our
Company and Jennifer MacLeod (incorporated herein
by reference to Exhibit 10.13 to Form 10-K filed
on May 9, 2006)
10.14 Employment Agreement, made and entered into as of
the 1st day of March 2005, by and between our
Company and William J. Moss (incorporated herein
by reference to Exhibit 10.13 to Form 10-K filed
on May 10, 2005)
10.15 Employment Agreement, made and entered into as of
the 11th day of December, 2006, by and between
our Company and Rebecca Philbert, and Offer
Letter dated the 11th day of December, 2006
(incorporated herein by reference to Exhibit
10.15 to the Annual Report on Form 10-K filed on
April 25, 2007)
10.16 Employment Agreement, made and entered into as of
the 28th day of October, 2002, by and
between our Company and Brian Piwek, and Offer
Letter dated the 23rd day of October, 2002
("Piwek Agreement") (incorporated herein by
reference to Exhibit 10.14 to Form 10-Q filed
on January 10, 2003)
10.17 Amendment to Brian Piwek Agreement dated
February 4, 2005 (incorporated herein by
reference to Exhibit 10.15 to Form 10-K filed on
May 10, 2005)
10.18 Employment Agreement, made and entered into as of
the 4th day of January 2006, by and between our
Company and Melissa E. Sungela (incorporated
herein by reference to Exhibit 10.17 to Form 10-Q
filed on January 6, 2006)
10.19 Employment Agreement, made and entered into as of
the 12th day of September 2005, by and between
our Company and Paul Wiseman (incorporated herein
by reference to Exhibit 10.17 to Form 10-Q filed
on October 18, 2005)
10.20 Employment Agreement, made and entered into as of
the 2nd day of December 2004, by and between our
Company and Allan Richards (incorporated herein
by reference to Exhibit 10.18 to Form 10-Q filed
on October 18, 2005)
10.21 Employment Agreement, made and entered into as of
the 2nd day of December 2004, by and between our
Company and Stephen Slade (incorporated herein by
reference to Exhibit 10.19 to Form 10-Q filed on
October 18, 2005)
10.22 Supplemental Executive Retirement Plan effective
as of September 1, 1997 (incorporated
herein by reference to Exhibit 10.B to Form 10-K
filed on May 27, 1998)
10.23 Supplemental Retirement and Benefit Restoration
Plan effective as of January 1, 2001
(incorporated herein by reference to Exhibit
10(j) to Form 10-K filed on May 23, 2001)
10.24 1994 Stock Option Plan (incorporated herein by
reference to Exhibit 10(e) to Form 10-K
filed on May 24, 1995)
10.25 1998 Long Term Incentive and Share Award Plan
(incorporated herein by reference to Exhibit
10(k) to Form 10-K filed on May 19, 1999, to
Appendix B to the Proxy Statement dated May 27,
2005 and to Appendix B to the Proxy Statement
dated May 25, 2006)
10.26 Form of Stock Option Grant (incorporated herein
by reference to Exhibit 10.20 to Form 10-K filed
on May 10, 2005)
10.27 Description of 2005 Turnaround Incentive
Compensation Program (incorporated herein by
reference to Exhibit 10.21 to Form 10-K filed on
May 10, 2005)
10.28 Form of Restricted Share Unit Award Agreement
(incorporated herein by reference to
Exhibit 10.22 to Form 10-K filed on May 10, 2005)
10.29 Description of 2006 Long Term Incentive Plan
(incorporated herein by reference to Exhibit
10.28 to Form 10-Q filed on July 21, 2006)
10.30 Form of 2006 Restricted Share Unit Award
Agreement (incorporated herein by reference to
Exhibit 10.29 to Form 10-Q filed on July 21,
2006)
10.31 1994 Stock Option Plan for Non-Employee Directors
(incorporated herein by reference to
Exhibit 10(f) to Form 10-K filed on May 24, 1995)
10.32 2004 Non-Employee Director Compensation effective
as of July 14, 2004 (incorporated herein by
reference to Exhibit 10.15 to Form 10-Q filed on
July 29, 2004 and to Appendix C to the Proxy
Statement dated May 25, 2006)
10.33 Description of Management Incentive Plan
(incorporated herein by reference to Exhibit
10.30 to Form 10-K filed on May 9, 2006)
10.34 Asset Purchase Agreement, dated as of June 27,
2005, by and between the Company, Ocean
Logistics LLC and C&S Wholesale Grocers, Inc.
(incorporated herein by reference to
Exhibit 10.38 to Form 10-Q filed on October 18,
2005)
10.35 Supply Agreement, dated as of June 27, 2005, by
and between the Company and C&S Wholesale
Grocers, Inc. (incorporated herein by reference
to Exhibit 10.39 to Form 10-Q filed on
October 18, 2005)
10.36 Information Technology Transition Services
Agreement by and between The Great Atlantic
and Pacific Tea Company, Limited ("A&P Canada")
and Metro, Inc. entered into on August
15, 2005 (incorporated herein by reference to
Exhibit 10.40 to Form 10-Q filed on October
18, 2005)
10.37 Investor Agreement by and between A&P Luxembourg
S.a.r.l., a wholly owned subsidiary of
the Company, and Metro, Inc. entered into on
August 15, 2005 (incorporated herein by
reference to Exhibit 10.41 to Form 10-Q filed on
October 18, 2005)
10.38 Letter of Credit Agreement, dated as of October
14, 2005 between the Company and Bank of
America, N.A., as Issuing Bank, ("Letter of
Credit Agreement") (incorporated herein by
reference to Exhibit 10.42 to Form 10-Q filed on
October 18, 2005)
10.39 First amendment to Letter of Credit Agreement,
dated October 13, 2006 (incorporated
herein by reference to Exhibit 10.39 to the
Annual Report on Form 10-K filed on April 25,
2007)
10.40 Second amendment to Letter of Credit Agreement,
dated November 10, 2006 (incorporated
herein by reference to Exhibit 10.40 to the
Annual Report on Form 10-K filed on April 25,
2007)
10.41 Entry into a Material Definitive Agreement, dated
as of March 4, 2007, by and between the
Company and Pathmark Stores, Inc. (incorporated
herein by reference to Form 8-K and the
accompanying exhibits filed on March 6, 2007)
13 Fiscal 2006 Annual Report to Stockholders
(incorporated herein by reference to Exhibit
99 to the Current Report on Form 8-K dated
October 24, 2007)
14 Code of Business Conduct and Ethics (incorporated
herein by reference to Exhibit 14 to
the Annual Report on Form 10-K filed on April 25,
2007)
16 Letter on Change in Certifying Accountant
(incorporated herein by reference to Forms 8-K
filed on September 18, 2002 and September 24,
2002, and Form 8-K/A filed on September 24,
2002)
18 Preferability Letter Issued by
PricewaterhouseCoopers LLP (incorporated herein
by reference to Exhibit 18 to Form 10-Q filed on
July 29, 2004)
21 Subsidiaries of Registrant (incorporated herein
by reference to Exhibit 21 to the Annual
Report on Form 10-K filed on April 25, 2007)
23.1 Consent of Independent Registered Public
Accounting Firm from PricewaterhouseCoopers LLP
(incorporated herein by reference to Exhibit 23.1
to the Current Report on Form 8-K dated
October 24, 2007)
23.2 * Consent of Independent Auditors from Ernst &
Young LLP, as filed herein
31.1 * Certification of the Chief Executive Officer
Pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002 , as filed herein
31.2* Certification of the Chief Financial Officer
Pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002, as filed herein
99.2 * Metro, Inc. September 30, 2006 Consolidated
Financial Statements, as filed herein
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* Filed with the Form 10-K/A, Amendment No. 1
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
Dated: April 10, 2008 By: /s/ Melissa E. Sungela
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Melissa E. Sungela, Vice President,
Corporate Controller (Chief Accounting Officer)