As filed with the Securities and Exchange Commission on July 29,
1997
Registration Number 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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THE PENN TRAFFIC COMPANY
(Exact name of registrant as specified in its charter)
Delaware 25-0716800
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1200 State Fair Boulevard 13221-4737
Syracuse, New York (Zip Code)
(Address of Principal
Executive Offices)
THE PENN TRAFFIC COMPANY 1997 PERFORMANCE INCENTIVE PLAN
(Full Title of Plan)
Francis D. Price, Jr., Esq.
Vice President and General Counsel
The Penn Traffic Company
1200 State Fair Boulevard
Syracuse, New York 13221-4737
(Name and address of agent for service)
(315) 453-7284
(Telephone number, including area code, of agent for service)
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Copies to:
John J. McCann, Esq.
Donovan Leisure Newton & Irvine
30 Rockefeller Plaza
New York, New York 10112
(212) 632-3345
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CALCULATION OF REGISTRATION FEE
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TITLE OF AMOUNT PROPOSED PROPOSED AMOUNT OF
SECURITIES TO BE MAXIMUM MAXIMUM REGISTRATION
TO REGISTERED(1) OFFERING AGGREGATE FEE
BE PRICE PER OFFERING
REGISTERED UNIT(1) PRICE(1)
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Common Stock 363,100 $4.0625 $ 1,475,093.80 $ 447.00
par value $1.25 23,500 6.3750 149,812.50 45.40
per share 652,000 7.6875 5,012,250.00 1,518.86
461,400 7.625 3,518,175.00 1,066.11
Total 1,500,000 $10,155,331.30 $3,077.37
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<FN>
(1) Represents shares of Common Stock issued or issuable under
the Penn Traffic Company 1997 Performance Incentive Plan
(the "Incentive Plan") or shares of Common Stock issuable
upon exercise of options granted or to be granted under the
Incentive Plan. Includes 363,100 shares with respect to
which options have been granted at an exercise price of
4.0625 per share, 23,500 shares with respect to which
options have been granted at an exercise price of 6.3750 and
652,000 shares with respect to which options have been
granted at an exercise price of 7.6875. An additional
461,400 shares are available for issuance under the
Incentive Plan. Pursuant to Rule 457(h) under the
Securities Act of 1933 as amended (the "Securities Act"),
the offering price for these additional shares is estimated
for the sole purpose of computing the registration fee.
Pursuant to Securities Act Rule 457(c), the proposed maximum
offering price for these additional shares is calculated as
the average of the high and low prices, reported by the New
York Stock Exchange, Inc., of the Common Stock of the
registrant as of July 25, 1997.
</FN>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing information specified in
Part I of Form S-8 will be sent or given to employees
participating in the Plan as specified by Rule 428(b)(1) of the
Securities Act of 1933, as amended. Those documents and the
documents incorporated by reference into this Registration
Statement pursuant to Item 3 of Part II of this Registration
Statement, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act of 1933, as
amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission by
The Penn Traffic Company ("Penn Traffic") (File No. 1-9930) are
incorporated herein by reference and made a part hereof:
(a) Penn Traffic's Annual Report on Form 10-K for the
fiscal year ended February 1, 1997;
(b) Penn Traffic's Quarterly Report on Form 10-Q for the
quarter ended May 3, 1997; and
(c) the description of the Common Stock of Penn Traffic
contained in its Registration Statement on Form 8-A
filed on December 14, 1994 pursuant to Section 12 of
the Securities Exchange Act of 1934 (the "Exchange
Act"), which description is qualified in its entirety
by reference to any amendment or report filed for the
purpose of updating that description.
All documents filed by Penn Traffic pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
subsequent to the date of this Registration Statement and prior
to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorpo
rated by reference in this Registration Statement, to be part
hereof from the date of filing of such documents.
The consolidated financial statements and financial
statement schedules of Penn Traffic included in or incorporated
by reference in Penn Traffic's Annual Report on Form 10-K for the
fiscal year ended February 1, 1997 have been incorporated herein
by reference in reliance upon the reports, also incorporated
herein by reference, of Price Waterhouse, LLP, independent
certified public accountants, given on their authority as experts
in auditing and accounting.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Penn Traffic is a Delaware corporation. Reference is
made to Section 145 of the Delaware General Corporation Law as to
indemnification by Penn Traffic of its officers and directors.
The general effect of such law is to empower a corporation to
indemnify any of its officers and directors against certain
expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by
the person to be indemnified in connection with certain actions,
suits or proceedings (threatened, pending or completed) if the
person to be indemnified acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best
interests of the corporation and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his
conduct was unlawful.
Article Eighth of Penn Traffic's Certificate of
Incorporation, as amended (which Certificate of Incorporation is
incorporated by reference as Exhibit 3.1 to this Registration
Statement), provides for the indemnification of Penn Traffic's
officers and directors in accordance with the Delaware General
Corporation Law, and includes, as permitted by the Delaware
General Corporation Law, certain limitations on the potential
personal liability of members of Penn Traffic's Board of
Directors for monetary damages as a result of actions taken in
their capacity as Board members.
The directors and officers of Penn Traffic, are covered
by insurance policies indemnifying them against certain
liabilities arising under the Securities Act, which might be
incurred by them in such capacities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The documents listed hereunder are filed as exhibits
hereto.
Exhibit Number Description
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3.1 Certificate of Incorporation of Penn Traffic
(incorporated by reference to Exhibit 3.1 to Penn Traffic's
Registration Statement on Form S-3 (Reg. No. 33-51824) filed
on October 2, 1992 with the Securities and Exchange
Commission.
4.1 The Penn Traffic Company 1997 Performance Incentive
Plan.
5 Opinion and Consent of Donovan
Leisure Newton & Irvine.
23.1 Consent of Donovan Leisure Newton & Irvine (included in
Exhibit 5 hereto).
23.2 Consent of Price Waterhouse, LLP dated July 28, 1997.
24 Powers of Attorney.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement:
(i) to include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or
events arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
Registration Statement; and
(iii) to include any material information with
respect to the plan of distribution not previously disclosed
in the Registration Statement or any material change to such
information in the Registration Statement; provided,
--------
however, that paragraphs (a)(1)(i) and (a)(1)(ii)
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do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission
by the registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-8 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
the City of Syracuse, State of New York, on the
29th day of July, 1997.
THE PENN TRAFFIC COMPANY
By /s/ Philip E. Hawkins
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Philip E. Hawkins
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
Date: July 29, 1997 By: /s/ Philip E. Hawkins
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Philip E. Hawkins
President and Chief Executive
Officer(principal executive
officer)
Date: July 29, 1997 By: /s/ Gary D. Hirsch *
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Gary D. Hirsch
Chairman of the Board and
Director
<FN1>
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* By: /s/ Francis D. Price, Esq.
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Francis D. Price, Esq.
Attorney-in-fact
<\FN1>
Date: July 29, 1997 By: /s/ Martin A. Fox *
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Martin A. Fox
Director
Date: July 29, 1997 By: /s/ Robert J. Davis
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Robert J. Davis
Senior Vice President - Finance
and Chief Financial Officer
(principal accounting officer
and principal financial officer)
Date: July 29, 1997 By: /s/ Eugene A. DePalma *
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Eugene A. DePalma
Director
Date: July 29, 1997 By: /s/ Susan E. Engel *
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Susan E. Engel
Director
Date: July 29, 1997 By: /s/ Claude J. Incaudo *
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Claude J. Incaudo
Director
<FN2>
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* By: /s/ Francis D. Price, Esq.
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Francis D. Price, Esq.
Attorney-in-fact
<\FN2>
Date: July 29, 1997 By: /s/ James A. Lash *
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James A. Lash
Director
Date: July 29, 1997 By: /s/ Harold S. Poster *
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Harold S. Poster
Director
Date: July 29, 1997 By: /s/ Richard D. Segal *
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Richard D. Segal
Director
<FN3>
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* By: /s/ Francis D. Price, Esq.
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Francis D. Price, Esq.
Attorney-in-fact
<\FN3>
INDEX TO EXHIBITS
Exhibit Number Description
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3.1 Certificate of Incorporation of
Penn Traffic (incorporated by
reference to Exhibit 3.1 to Penn
Traffic's Registration Statement on
Form S-3 (Reg. No. 33-51824) filed on
October 2, 1992 with the Securities
and Exchange Commission.
4.1 The Penn Traffic Company 1997
Performance Incentive Plan.
5 Opinion and Consent of Donovan
Leisure Newton & Irvine.
23.1 Consent of Donovan Leisure Newton
& Irvine (included in Exhibit 5
hereto).
23.2 Consent of Price Waterhouse, LLP
dated July 28, 1997.
24 Powers of Attorney.