Exhibit 10.21(b)
AMENDMENT NO. 2 TO EMPLOYMENT AGREEMENT
This Amendment No. 2 To Employment Agreement (the "AMENDMENT") is
entered into as of this 2nd day of December, 1999 by and between The Penn
Traffic Company (the "COMPANY") and Joseph V. Fisher ("EXECUTIVE").
WHEREAS, the Executive has been employed by the Company as its
President and Chief Executive Officer pursuant to an Employment Agreement
entered into as of October 30, 1998 (the "EMPLOYMENT AGREEMENT");
WHEREAS, the Company, on June 29, 1999, consummated the
"pre-negotiated" plan of reorganization (the "PLAN") under Chapter 11 of Title
11 of the United States Code, 11 U.S.C.ss. 101 et seq., (the "BANKRUPTCY COde");
WHEREAS, as part of the Plan, on June 29, 1999, the Company and
Executive executed an amendment to the Employment Agreement; and
WHEREAS, the Company and Executive desire to further amend the
Employment Agreement in order to provide Executive with additional stock options
and to provide for certain payments upon a change of control.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
1. Section 4(e) of the Employment Agreement shall be modified by adding
the following language after the end of the second sentence:
"In addition, Executive shall be granted as of September 22, 1999,
options to purchase 140,000 shares of the Common Stock with an exercise
price equal to $8.75 per share. Such options shall vest 20% as of
September 22, 1999, and 20% on each of the four anniversaries thereof.
Such options generally must be exercised on or before the tenth
anniversary of such date. A copy of the Award Agreement for such
options is attached hereto as EXHIBIT B."
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2. Section 11(a) shall be amended by adding the following language to
the end thereof:
"In addition, if a Section 11(c) Change of Control (as defined
below) occurs on or before the Determination Date (as defined below) but
following such termination, then notwithstanding the termination of this
Agreement by the Company for any reason other than Cause (or by the Executive
for Good Reason), the Company shall, in addition to the payments required
pursuant to this Section 11(a), make the Change of Control Payment as provided
in Section 11(c) on the dates provided in such section, LESS the amount of Base
Salary to be paid by the Company to Executive pursuant to this Section 11(a)
with respect to any period following the date the Change of Control Payment is
made until the end of the Term."
3. The third sentence of Section 11(b) shall be deleted and replaced
in its entirety with the following:
"For purposes of this Agreement, "Change of Control" shall
mean the occurrence of any event where (i) any "person" (as
such term is used in Sections 13(d) and 14(d) of the Exchange
Act) is or becomes the "beneficial owner" (as defined in Rules
13d-3 and 13d-5 under the Securities Exchange Act of 1934,
except that a person shall be deemed to have "beneficial
ownership" of all shares that any such person has the right to
acquire, whether such right is exercisable immediately or only
after the passage of time), directly or indirectly, of 50% or
more of the outstanding shares of common stock of the Company
or securities representing 50% or more of the combined voting
power of the Company's voting stock, (ii) the Company
consolidates with or merges into another person or conveys,
transfers, sells or leases all or substantially all of its
assets to any person, or any person consolidates with or
merges into the Company, in either event pursuant to a
transaction in which the outstanding voting stock of the
Company is changed into or exchanged for cash, securities or
other property, other than any such transaction between the
Company and its wholly owned subsidiaries (which wholly owned
subsidiaries are United States corporations), with the effect
that any "person"
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becomes the "beneficial owner," directly or indirectly, of 50%
or more of the outstanding shares of common stock of the
Company or securities representing 50% or more of the combined
voting power of the Company's voting stock or (iii) during any
consecutive two-year period, individuals who at the beginning
of such period constituted the Board (together with any new
directors whose election by the Board, or whose nomination for
election by the Company's stockholders, was approved by a vote
of at least a majority of the directors then still in office
who were either directors at the beginning of such period or
whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the
directors then in office."
4. A new Section 11(c) shall be added to the Employment Agreement,
which shall read in its entirety as follows:
"(c) If at any time prior to the "DETERMINATION DATE" (as
defined below) a "SECTION 11(C) CHANGE OF CONTROL" (as defined below)
occurs, then in lieu of the payments provided under Section 11(b)
above, Executive shall be entitled to receive the "CHANGE OF CONTROL
PAYMENT" (as defined below) on the date of the occurrence of a Section
11(c) Change of Control and to acceleration of the forgiveness of the
Loan contemplated under Section 4(d) hereof. Upon Executive's receipt
of the Change of Control Payment in full (subject to offset as set
forth in Section 11(a)), this Agreement shall be terminated
automatically and Executive shall no longer be entitled to any further
payments described herein except for (i) the payments required to be
made pursuant to Section 11(a) following termination of this Agreement
and (ii) reimbursement of expenses contemplated by Section 5(c).
For purposes of this Agreement, the following terms shall have
the following meanings:
(i) "DETERMINATION DATE" shall mean December 31, 2000;
PROVIDED, THAT, if a definitive agreement (as such agreement may be
amended, modified or supplemented from time to time) with respect to an
event which would constitute a Section 11(c) Change of Control is
executed on or before August 31, 2000, or if such definitive agreement
is terminated and within six months of
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the date of such termination the Company enters into another definitive
agreement with respect to an event which would constitute a Section
11(c) Change of Control with the same entity (or such entity's
affiliate) that was a party to the first such agreement, then the
Determination Date for purposes of determining Executive's rights under
this Section 11(c) shall be the date on which the transaction
contemplated by such definitive agreement is consummated.
(ii) "SECTION 11(C) CHANGE OF CONTROL" shall have the same
meaning as clauses (i) and (ii) of the definition of "Change of
Control" in Section 11(b) above and shall also include an event that
results in Byron Allumbaugh, Kevin Collins, Thomas Harberts, Gabriel
Nechamkin, Lief Rosenblatt, Mark Sonnino and Peter Zurkow who, as of
June 29, 1999, constituted the independent directors of the Board,
ceasing to constitute a majority of the independent directors then in
office.
(iii) "CHANGE OF CONTROL PAYMENT" shall mean the sum of the
greater of (I) Base Salary for the remainder of the Term (but not less
than one-year's Base Salary) and (II) $5,000,000, MINUS the SUM of (A)
the "in-the-money" value on the date of the occurrence of a Section
11(c) Change of Control of the options granted to Executive on June 29,
1999 under Section 4(e) hereof (I.E., 280,000 options MULTIPLIED by the
DIFFERENCE between the (1) closing price of the Common Stock on the
Nasdaq National Market on the last trading date immediately prior to
the date of the occurrence of a Section 11(c) Change of Control (or if
the transaction which triggers the Section 11(c) Change of Control is a
cash tender offer, the cash tender offer per share price) AND (2)
$18.30) PLUS (B) the "in-the-money" value on the date of the occurrence
of a Section 11(c) Change of Control of Executive's options granted on
September 22, 1999 under Section 4(e) hereof that are vested and
exercisable (I.E., up to 140,000 options MULTIPLIED by the DIFFERENCE
between (1) the closing price of the Common Stock on the Nasdaq
National Market on the last trading date immediately prior to the date
of the occurrence of a Section 11(c) Change of Control (or if the
transaction which triggers the Section 11(c) Change of Control is a
cash tender offer, the cash tender offer per share price) AND (2)
$8.75)."
5. A new Section 11(d) shall be added to the Employment Agreement which
shall read in its entirety as follows:
"(d) GROSS-UP PAYMENT. In the event it shall be determined
that any
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payment or distribution of any type to or for the benefit of the
Executive, by the Company, any of its affiliates, any Person who
acquires ownership or effective control of the Company or ownership of
a substantial portion of the Company's assets (within the meaning of
IRC ss. 280G and the regulations thereunder) or any affiliate of such
Person, whether paid or payable or distributed or distributable
pursuant to the terms of this Agreement or otherwise (the "TOTAL
PAYMENTS"), would be subject to the excise tax imposed by Section 4999
of the Internal Revenue Code of 1986, as amended (the "CODE"), or any
interest or penalties with respect to such excise tax (such excise tax,
together with any such interest and penalties, are collectively
referred to as the "EXCISE TAX"), then the Executive shall be entitled
to receive an additional payment (a "GROSS-UP PAYMENT") in an amount
such that after payment by the Executive of all taxes (including any
interest or penalties imposed with respect to such taxes), including
any Excise Tax, imposed upon the Gross-Up Payment, the Executive
retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Total Payments."
6. Other than as amended herein, the Employment Agreement, as amended
by the June 29, 1999 amendment, shall continue in full force and effect. In the
event of a explicit conflict between the Employment Agreement and this
Amendment, the Amendment will govern.
7. This Amendment may be executed in counterparts, each of which, when
so executed and delivered, shall be an original, but all of which together shall
constitute one document.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
THE PENN TRAFFIC COMPANY
/s/ Francis D. Price /s/ Joseph V. Fisher
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By: Francis D. Price Joseph V. Fisher
Title: Vice President, General Counsel