UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A/A
AMENDMENT NO. 2
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
THE PENN TRAFFIC COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE 25-0716800
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1200 STATE FAIR BOULEVARD, SYRACUSE, NEW YORK 13221-4737
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(Address of principal executive offices) (Zip Code)
If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. [_]
If this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. [X]
Securities Act registration file number to which this form relates (if
applicable): 333-121001 Securities to be registered pursuant to Section 12(b) of
the Act: None
Securities to be registered pursuant to Section 12(g) of the Act: Common Stock,
par value $.01 per share
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
On April 13, 2005, The Penn Traffic Company, a Delaware corporation
(the "COMPANY"), emerged from Chapter 11 proceedings pursuant to the First
Amended Joint Plan of Reorganization of The Penn Traffic Company and its
Affiliated Debtors and Debtors in Possession filed with the United States
Bankruptcy Court for the Southern District of New York (the "BANKRUPTCY COURT")
on February 4, 2005 (as amended, the "PLAN"), which was confirmed by the
Bankruptcy Court on March 17, 2005. The Plan is incorporated by reference as
Exhibit 2.1 hereto, and the order confirming the Plan is incorporated by
reference as Exhibit 2.2 hereto.
Pursuant to the Plan, all of the issued and outstanding shares of
common stock, par value $0.01 per share, of the Company, were cancelled, and the
Company will issue up to an aggregate of 10,000,000 shares of its new common
stock, par value $0.01 per share (the "NEW COMMON STOCK"), to certain holders of
allowed claims and holders of the Company's 11% Senior Notes due 2009 under the
terms of the Plan.
The following description of the New Common Stock and certain
provisions of the Company's Second Amended and Restated Certificate of
Incorporation (the "CERTIFICATE OF INCORPORATION") and Second Amended and
Restated By-Laws (the "BY-LAWS") is a summary and is qualified in its entirety
by the Certificate of Incorporation and By-Laws, copies of which are filed as
Exhibits 3.1 and 3.2, respectively, hereto.
Pursuant to the Certificate of Incorporation, the total number of
shares of stock which the Company shall have authority to issue is 16,000,000,
consisting of (i) 15,000,000 shares of Common Stock, par value $0.01 per share,
and (ii) 1,000,000 shares of preferred stock, par value $0.01 per share (the
"PREFERRED STOCK"). The Certificate of Incorporation provides that the Company
shall not issue any nonvoting equity securities to the extent prohibited by
Section 1123(a)(6) of the United States Bankruptcy Code (the "BANKRUPTCY CODE")
for so long as such Section is in effect and applicable to the Company.
DESCRIPTION OF COMMON STOCK
Subject to the rights of the holders of Preferred Stock and any
other provisions of the Certificate of Incorporation, the holders of shares of
New Common Stock shall be entitled to receive such dividends and other
distributions in cash, stock or property of the Company when, as and if declared
thereon by the Board of Directors from time to time out of assets or funds of
the Company legally available therefor. In the event of a liquidation,
dissolution, winding up of, or any dissolution of the assets of the Company, the
holders shares of New Common Stock are entitled to receive the assets and funds
of the Company legally available for distribution, in proportion to the number
of shares held by them, respectively. Holders of shares of New Common Stock have
no preemptive rights, subscription rights or conversion rights. The shares of
New Common Stock are not subject to sinking fund provisions or redemption. All
of the outstanding shares of New Common Stock are duly authorized, validly
issued, fully paid, and nonassessable. The issuance of shares of New Common
Stock under the Plan is exempt from registration under the Securities Act of
1933, as amended (the "SECURITIES ACT"), pursuant to Section 1145 of the
Bankruptcy Code and any subsequent transactions in the New Common Stock so
issued are exempt from registration under the Securities Act unless the holder
is deemed an "underwriter" under Section 1145(b) of the Bankruptcy Code.
Each holder of shares of New Common Stock is entitled to cast one
vote in person or by proxy for each share owned of record at every meeting of
stockholders on all matters submitted to a vote of stockholders of the Company,
including the election of directors. Such right to vote shall be subject to the
right of the board of directors of the Company (the "BOARD OF DIRECTORS") to fix
a record date for voting stockholders.
PREFERRED STOCK
The Company is also authorized to issue 1,000,000 shares of
Preferred Stock. No shares of Preferred Stock will be outstanding upon the
consummation of the Plan. The Board of Directors is expressly authorized, by
resolution or resolutions, to provide for the issue of all or any shares of the
Preferred Stock, in one or more series, and to fix for each such series such
voting powers, full or limited or no voting powers, and such designations,
preferences and relative, participating, optional or other special rights and
such qualifications, limitations or restrictions thereon, as shall be stated and
expressed in the resolution or resolutions adopted by the Board of Directors
providing for the issue of such series (a "PREFERRED STOCK DESIGNATION") and as
may be permitted by law. The number of authorized shares of Preferred Stock may
be increased or decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of a majority of the holders of the voting
power of all of the then outstanding shares of the capital stock of the Company
entitled to vote generally in the election of directors voting together as a
single class, without a separate vote of the holders of the Preferred Stock, or
any series thereof, unless a vote of any such holders is required pursuant to
any Preferred Stock Designation.
ITEM 2. EXHIBITS.
All of the following exhibits have been filed as exhibits to the
Registration Statement, and are hereby incorporated by reference:
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT
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2.1 First Amended Joint Plan of Reorganization Plan of The
Penn Traffic Company and its Affiliated Debtors and
Debtors in Possession, dated February 4, 2005
(incorporated by reference to Exhibit 2.1 of the
Current Report on Form 8-K filed by the Company on
March 24, 2005).
2.2 Order and Judgment Confirming First Amended Joint Plan
of Reorganization of The Penn Traffic Company and its
Affiliated Debtors and Debtors-in-Possession under
Chapter 11 of the Bankruptcy Code dated February 4,
2005 and Granting Related Relief (incorporated by
reference to Exhibit 2.5 of the Current Report on Form
8-K filed by the Company on March 24, 2005).
3.1 Second Amended and Restated Certificate of
Incorporation of the Company.
3.2 Second Amended and Restated By-laws of the Company.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the Registrant has duly caused this registration statement
to be signed on its behalf by the undersigned, thereto duly authorized.
Dated: April 13, 2005
THE PENN TRAFFIC COMPANY
By: /s/ Francis D. Price, Jr.
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Name: Francis D. Price, Jr.
Title: Vice President
INDEX TO EXHIBITS
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT
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2.1 First Amended Joint Plan of Reorganization Plan of The
Penn Traffic Company and its Affiliated Debtors and
Debtors in Possession, dated February 4, 2005
(incorporated by reference to Exhibit 2.1 of the
Current Report on Form 8-K filed by the Company on
March 24, 2005).
2.2 Order and Judgment Confirming First Amended Joint Plan
of Reorganization of The Penn Traffic Company and its
Affiliated Debtors and Debtors-in-Possession under
Chapter 11 of the Bankruptcy Code dated February 4,
2005 and Granting Related Relief (incorporated by
reference to Exhibit 2.5 of the Current Report on Form
8-K filed by the Company on March 24, 2005).
3.1 Second Amended and Restated Certificate of
Incorporation of the Company.
3.2 Second Amended and Restated By-laws of the Company.