EXHIBIT 10.24
PENN TRAFFIC COMPANY
1999 EQUITY INCENTIVE PLAN
SECTION 1. Purpose. The purposes of this Penn Traffic Company 1999
Equity Incentive Plan are to promote the interests of The Penn Traffic Company
and its shareholders by (i) attracting and retaining officers and key employees
of the Company and its Affiliates and (ii) enabling such individuals to
participate in the long-term growth and financial success of the Company.
SECTION 2. Definitions. As used in the Plan, the following terms shall
have the meanings set forth below:
"Affiliate" shall mean (i) any entity that, directly or indirectly, is
controlled by, controls or is under common control with, the Company and (ii)
any entity in which the Company has a significant equity interest, in either
case as determined by the Committee.
"Award Agreement" shall mean any written agreement, contract, or other
instrument or document evidencing any Option, which may, but need not, be
executed or acknowledged by a Participant.
"Board" shall mean the Board of Directors of the Company.
"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 Affiliates (which wholly
owned Affiliates are United States corporations), with the effect that any
"person" 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
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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.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Committee" shall mean the Compensation and Stock Option Committee of
the Board, or such other committee of the Board as may be designated by the
Board to administer the Plan; provided, however, that any such committee shall
consist solely of two or more "outside directors" within the meaning of Section
162(m) of the Code.
"Company" shall mean The Penn Traffic Company, together with any
successor thereto.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" shall mean, (A) with respect to any property other
than Shares, the fair market value of such property determined by such methods
or procedures as shall be established from time to time by the Committee and (B)
with respect to the Shares, as of any date, (i) the mean between the high and
low sales prices of the Shares as reported on the composite tape for securities
traded on the New York Stock Exchange for such date (or if not then trading on
the New York Stock Exchange, the mean between the high and low sales price of
the Shares on the stock exchange or over-the-counter market on which the Shares
are principally trading on such date) or, if there were no sales on such date,
on the closest preceding date on which there were sales of Shares or (ii) in the
event there shall be no public market for the Shares on such date, the fair
market value of the Shares as determined in good faith by the Committee.
"Incentive Stock Option" shall mean a right to purchase Shares from the
Company that is granted under Section 6 of the Plan and that is intended to
meet, and that meets, the requirements of Section 422 of the Code or any
successor provision thereto.
"Management Agreement" shall mean the agreement dated as of June 29,
1999 among the Company, Hirsch & Fox, L.L.C., Gary D. Hirsch and Martin A. Fox.
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"Non-Qualified Stock Option" shall mean a right to purchase Shares from
the Company that is granted under Section 6 of the Plan and that is not intended
to be an Incentive Stock Option.
"Option" shall mean an Incentive Stock Option or a Non-Qualified Stock
Option.
"Participant" shall mean any officer or key employee of the Company or
its Affiliates eligible for an Option under Section 5 of the Plan and selected
by the Committee to receive an Option under the Plan.
"Person" shall mean any individual, corporation, partnership,
association, joint-stock company, trust, unincorporated organization, government
or political subdivision thereof or other entity.
"Plan" shall mean this Penn Traffic Company 1999 Equity Incentive Plan.
"Reorganization Plan" shall mean the Joint Plan of Reorganization of
the Company and certain of its Affiliates under chapter 11 of the Bankruptcy
Code.
"Rule 16b-3" shall mean Rule 16b-3 as promulgated and interpreted by
the SEC under the Exchange Act, or any successor rule or regulation thereto as
in effect from time to time.
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto and shall include the Staff thereof.
"Shares" shall mean the common shares of Penn Traffic Company, $.01 par
value, or such other securities of the Company (i) into which such common shares
shall be changed by reason of a recapitalization, merger, consolidation,
split-up, combination, exchange of shares or other similar transaction or (ii)
as may be determined by the Committee pursuant to Section 4(b).
"Substitute Options" shall have the meaning specified in Section 4(c).
SECTION 3. Administration. (a) The Plan shall be administered by the
Committee. Subject to the terms of the Plan and applicable law, and in addition
to other express powers and authorizations conferred on the Committee by the
Plan, the Committee shall have full power and authority to: (i) designate
Participants; (ii) determine the type or types of Options to be granted to a
Participant; (iii) determine the number of Shares to be covered by Options; (iv)
determine the terms and conditions of any Option; (v) determine whether, to what
extent, and under what circumstances Options may be settled or exercised in cash
or Shares, or canceled, forfeited, or suspended and the method or methods by
which Options may be settled, exercised, canceled, forfeited, or suspended; (vi)
determine whether, to what extent,
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and under what circumstances cash, Shares, other securities, other Options,
other property, and other amounts payable with respect to an Option shall be
deferred either automatically or at the election of the holder thereof or of the
Committee; (vii) interpret, administer reconcile any inconsistency, correct any
default and/or supply any omission in the Plan and any instrument or agreement
relating to, or Option made under, the Plan; (viii) establish, amend, suspend,
or waive such rules and regulations and appoint such agents as it shall deem
appropriate for the proper administration of the Plan; and (ix) make any other
determination and take any other action that the Committee deems necessary or
desirable for the administration of the Plan.
(b) Unless otherwise expressly provided in the Plan, all designations,
determinations, interpretations, and other decisions under or with respect to
the Plan or any Option shall be within the sole discretion of the Committee, may
be made at any time and shall be final, conclusive, and binding upon all
Persons, including the Company, any Affiliate, any Participant, any holder or
beneficiary of any Option, and any shareholder.
(c) No member of the Committee shall be liable for any action or
determination made in good faith with respect to the Plan or any Option
hereunder.
SECTION 4. Shares Available for Options.
(a) Shares Available. Subject to adjustment as provided in Section
4(b), the aggregate number of Shares with respect to which Options may be
granted under the Plan shall be 2,297,000. If, after the effective date of the
Plan, an Option has expired, terminated or been canceled for any reason
whatsoever (other than by reason of exercise or vesting), then the Shares
covered by such Option shall again be, or shall become, Shares with respect to
which Options may be granted hereunder.
(b) Adjustments. In the event of any dividend or other distribution
(whether in the form of cash, Shares, other securities, or other property),
recapitalization, stock split, reverse stock split, reorganization, merger,
consolidation, split-up, spin-off, combination, repurchase, or exchange of
Shares or other securities of the Company, issuance of warrants or other rights
to purchase Shares or other securities of the Company, or other similar
corporate transaction or event affecting the Shares, then the Committee shall,
in order to prevent dilution or enlargement of the benefits or potential
benefits intended to be made available under the Plan, in such manner as it may
deem appropriate, equitably adjust any or all of (i) the number of Shares or
other securities of the Company (or number and kind of other securities or
property) with respect to which Options may be granted, (ii) the number of
Shares or other securities of the Company (or number and kind of other
securities or property) subject to outstanding Options, and (iii) the exercise
price with respect to any Option or, if deemed appropriate, make provision for a
cash payment to the holder of an outstanding Option in consideration for the
cancellation of such Option in an amount
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equal to the excess, if any, of the Fair Market Value of the Shares subject to
the Options over the aggregate exercise price of such Option.
(c) Substitute Options. Options may, in the discretion of the
Committee, be made under the Plan in assumption of, or in substitution for,
outstanding awards previously granted by the Company or its Affiliates or a
company acquired by the Company or with which the Company combines ("Substitute
Options"). The number of Shares underlying any Substitute Options shall be
counted against the aggregate number of Shares available for Options under the
Plan.
(d) Sources of Shares Deliverable Under Options. Any Shares delivered
pursuant to an Option may consist, in whole or in part, of authorized and
unissued Shares or of treasury Shares.
SECTION 5. Eligibility. Any officer or key employee of the Company or
any of its Affiliates (including any prospective officer or key employee) shall
be eligible to be designated a Participant.
SECTION 6. Stock Options.
(a) Grant. Subject to the provisions of the Plan, the Committee shall
have sole and complete authority to determine the Participants to whom Options
shall be granted, the number of Shares to be covered by each Option, the
exercise price therefor and the conditions and limitations applicable to the
exercise of the Option. The Committee shall have the authority to grant
Incentive Stock Options, or to grant Non-Qualified Stock Options, or to grant
both types of Options. In the case of Incentive Stock Options, the terms and
conditions of such grants shall be subject to and comply with Section 422 of the
Code, as from time to time amended, and any rules and regulations implementing
such statute. All Options when granted under the Plan are intended to be
Non-Qualified Stock Options, unless the applicable Award Agreement expressly
states that the Option is intended to be an Incentive Stock Option. If an Option
is intended to be an Incentive Stock Option, and if for any reason such Option
(or any portion thereof) shall not qualify as an Incentive Stock Option, then,
to the extent of such nonqualification, such Option (or portion thereof) shall
be regarded as a Non-Qualified Stock Option appropriately granted under the
Plan; provided that such Option (or portion thereof) otherwise complies with the
Plan's requirements relating to Non-Qualified Stock Options.
(b) Exercise Price. The Committee shall establish the exercise price at
the time each Option is granted, which exercise price shall be set forth in the
applicable Award Agreement; provided, however, that, in the case of Incentive
Stock Options, the exercise price shall not be (i) less than 100% of Fair Market
Value on the date of grant or (ii) less than 110% of Fair Market Value on the
date of grant, if the Participant owns stock representing 10% or more of the
voting power of the Company.
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(c) Exercise. Each Option shall be exercisable at such times and
subject to such terms and conditions as the Committee may, in its sole
discretion, specify in the applicable Award Agreement or thereafter. The
Committee may impose such conditions with respect to the exercise of Options,
including without limitation, any relating to the application of federal or
state securities laws, as it may deem necessary or advisable.
(d) Payment.
(i) No Shares shall be delivered pursuant to any exercise of
an Option until payment in full of the aggregate exercise price therefor is
received by the Company. Such payment may be made in cash, or its equivalent, or
(x) by exchanging Shares owned by the optionee (which are not the subject of any
pledge or other security interest and which have been owned by such optionee for
at least 6 months), (y) if there shall be a public market for the Shares at such
time, subject to such rules as may be established by the Committee, through
delivery of irrevocable instructions to a broker to sell the Shares otherwise
deliverable upon the exercise of the Option and to deliver promptly to the
Company an amount equal to the aggregate exercise price, or (z) with the consent
of the Committee in its sole discretion, by the promissory note and agreement of
a Participant providing for the payment with interest of the unpaid balance
accruing at a rate not less than needed to avoid the imputation of income under
Code section 7872 and upon such terms and conditions (including the furnishing
of security, if any therefor) as the Committee may determine, or by a
combination of the foregoing; provided that the combined value of all cash and
cash equivalents and the Fair Market Value of any such Shares so tendered to the
Company as of the date of such tender is at least equal to such aggregate
exercise price.
(ii) Wherever in this Plan or any Award Agreement a
Participant is permitted to pay the exercise price of an Option or taxes
relating to the exercise of an Option by delivering Shares, the Participant may,
subject to procedures satisfactory to the Committee, satisfy such delivery
requirement by presenting proof of beneficial ownership of such Shares, in which
case the Company shall treat the Option as exercised without further payment and
shall withhold such number of Shares from the Shares acquired by the exercise of
the Option.
(e) Maximum Term; Maximum Grant. No Option granted under this Plan
shall be exercisable (i) on or after the tenth anniversary of the date of grant
or (ii) in the case of an Incentive Stock Option held by a Participants who owns
stock representing 10% or more of the voting power of the Company on the date of
grant of such Option, on or after the fifth anniversary of the date of grant.
The maximum number of Shares with respect to which Options may be granted to any
Participant under this Plan in any calendar year shall be 1,000,000.
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SECTION 7. Amendment and Termination.
(a) Amendments to the Plan. The Board may amend, alter, suspend,
discontinue, or terminate the Plan or any portion thereof at any time; provided
that no such amendment, alteration, suspension, discontinuation or termination
shall be made without shareholder approval if such approval is necessary to
comply with any tax or regulatory requirement applicable to the Plan; and
provided further that any such amendment, alteration, suspension, discontinuance
or termination that would impair the rights of any Participant or any holder or
beneficiary of any Option theretofore granted shall not to that extent be
effective without the consent of the affected Participant, holder or
beneficiary.
(b) Amendments to Options. The Committee may waive any conditions or
rights under, amend any terms of, or alter, suspend, discontinue, cancel or
terminate, any Option theretofore granted, prospectively or retroactively;
provided that any such waiver, amendment, alteration, suspension,
discontinuance, cancellation or termination that would impair the rights of any
Participant or any holder or beneficiary of any Option theretofore granted shall
not to that extent be effective without the consent of the affected Participant,
holder or beneficiary.
(c) Adjustment of Options Upon the Occurrence of Certain Unusual or
Nonrecurring Events. The Committee is hereby authorized to make adjustments in
the terms and conditions of, and the criteria included in, Options in
recognition of unusual or nonrecurring events (including, without limitation,
the events described in Section 4(b) hereof) affecting the Company, any
Affiliate, or the financial statements of the Company or any Affiliate, or of
changes in applicable laws, regulations, or accounting principles, whenever the
Committee determines that such adjustments are appropriate in order to prevent
dilution or enlargement of the benefits or potential benefits intended to be
made available under the Plan.
SECTION 8. Change of Control. Unless otherwise provided in an
applicable Award Agreement, in the event of a Change of Control after the date
of the adoption of this Plan, any outstanding Options then held by Participants,
which are unexercisable or otherwise unvested, shall automatically be deemed
exercisable or otherwise vested, as the case may be, as of immediately prior to
such Change of Control.
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SECTION 9. General Provisions.
(a) Nontransferability.
(i) Each Option shall be exercisable only by the Participant during the
Participant's lifetime, or, if permissible under applicable law, by the
Participant's legal guardian or representative. No Option may be assigned,
alienated, pledged, attached, sold or otherwise transferred or encumbered by a
Participant otherwise than by will or by the laws of descent and distribution
and any such purported assignment, alienation, pledge, attachment, sale,
transfer or encumbrance shall be void and unenforceable against the Company or
any Affiliate; provided that the designation of a beneficiary shall not
constitute an assignment, alienation, pledge, attachment, sale, transfer or
encumbrance.
(ii) Notwithstanding the foregoing, the Committee may in the applicable
Award Agreement evidencing an Option granted under the Plan, or at any time
thereafter in an amendment to an Award Agreement applicable to a previously
granted Option provide that Options granted hereunder which are not intended to
qualify as Incentive Stock Options may be transferred by the Participant to whom
such Option was granted (the "Grantee") without consideration, subject to such
rules as the Committee may adopt to preserve the purposes of the Plan, to:
(A) any or all of the Grantee's spouse, children or grandchildren
(including adopted and stepchildren and grandchildren) (collectively,
the "Immediate Family");
(B) a trust solely for the benefit of the Grantee and/or his or her
Immediate Family (a "Family Trust"); or
(C) a partnership or limited liability company whose only partners or
shareholders are the Grantee and/or his or her Immediate Family and/or
a Family Trust;
(each transferee described in clauses (A), (B) and (C) above is
hereinafter referred to as a "Permitted Transferee"); provided that the
Grantee gives the Committee advance written notice describing the terms
and conditions of the proposed transfer and the Committee notifies the
Grantee in writing that such a transfer would comply with the requirements
of the Plan and any applicable Award Agreement evidencing the Option.
The terms of any Option transferred in accordance with the
immediately preceding sentence shall apply to the Permitted Transferee and
any reference in the Plan or in an Award Agreement to an optionee, Grantee
or Participant shall be deemed to refer to the Permitted Transferee,
except that (a) Permitted Transferees shall not be entitled to transfer
any Options, other than by will or the laws of descent and distribution;
(b) Permitted Transferees shall not be entitled to exercise any
transferred Options unless there shall be in effect a registration
statement on an appropriate form covering the shares to be acquired
pursuant to the exercise of such Option if the Committee determines that
such registration statement is necessary or appropriate, (c) the Committee
or the Company shall not be required to provide any notice to a Permitted
Transferee, whether or not such notice is or would otherwise have been
required to be given to the Grantee under the Plan or otherwise and (d)
the consequences of termination of the Grantee's employment by, or
services to, the Company under the terms of the Plan and the applicable
Award Agreement
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shall continue to be applied with respect to the Grantee, following which
the Option shall be exercisable by the Permitted Transferee only to the
extent, and for the periods, specified in the Plan and the applicable
Award Agreement.
(b) No Rights to Options. No Participant or other Person shall have any
claim to be granted any Option, and there is no obligation for uniformity of
treatment of Participants, or holders or beneficiaries of Options. The terms and
conditions of Options and the Committee's determinations and interpretations
with respect thereto need not be the same with respect to each Participant
(whether or not such Participants are similarly situated).
(c) Share Certificates. All certificates for Shares or other securities
of the Company or any Affiliate delivered under the Plan pursuant to any Option
or the exercise thereof shall be subject to such stop transfer orders and other
restrictions as the Committee may deem advisable under the Plan or the rules,
regulations, and other requirements of the SEC, any stock exchange upon which
such Shares or other securities are then listed, and any applicable Federal or
state laws, and the Committee may cause a legend or legends to be put on any
such certificates to make appropriate reference to such restrictions.
(d) Withholding.
(i) A Participant may be required to pay to the Company or any
Affiliate and the Company or any Affiliate shall have the right and is hereby
authorized to withhold from any Shares or other property deliverable under any
Option or from any compensation or other amount owing to a Participant or under
the Management Agreement the amount (in cash, Shares or other property) of any
applicable withholding taxes in respect of an Option, its exercise, or any
payment or transfer under an Option or under the Plan and to take such other
action as may be necessary in the opinion of the Company to satisfy all
obligations for the payment of such taxes.
(ii) Without limiting the generality of clause (i) above, a
Participant may satisfy, in whole or in part, the foregoing withholding
liability by delivery of Shares owned by the Participant (which are not subject
to any pledge or other security interest and which have been owned by the
Participant for at least 6 months) with a Fair Market Value equal to such
withholding liability or by having the Company withhold from the number of
Shares otherwise issuable pursuant to the exercise of the Option a number of
Shares with a Fair Market Value equal to such withholding liability.
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(iii) The Company may, as a condition of Option exercise,
require that satisfactory arrangements have been made in advance to satisfy all
tax withholding obligations.
(e) Award Agreements. Each Option hereunder shall be evidenced by an
Award Agreement, which shall be delivered to the Participant and shall specify
the terms and conditions of the Option and any rules applicable thereto,
including but not limited to the effect on such Option of the death, disability
or termination of employment or service of a Participant, and the effect, if
any, of such other events as may be determined by the Committee.
(f) No Limit on Other Compensation Arrangements. Nothing contained in
the Plan shall prevent the Company or any Affiliate from adopting or continuing
in effect other compensation arrangements, which may, but need not, provide for
the grant of options (subject to shareholder approval if such approval is
required), and such arrangements may be either generally applicable or
applicable only in specific cases.
(g) No Right to Employment. The grant of an Option shall not be
construed as (i) giving a Participant the right to be retained in the employ of,
or in any consulting relationship to, the Company or any Affiliate or (ii) in
any way affecting the rights of the parties under the Management Agreement.
Further, the Company or an Affiliate may at any time dismiss a Participant from
employment or discontinue any consulting relationship, free from any liability
or any claim under the Plan, unless otherwise expressly provided in the Plan or
in any Award Agreement.
(h) No Rights as Shareholder. Subject to the provisions of the
applicable Option, no Participant or holder or beneficiary of any Option shall
have any rights as a shareholder with respect to any Shares to be distributed
under the Plan until he or she has become the holder of such Shares.
(i) Governing Law. The validity, construction, and effect of the Plan
and any rules and regulations relating to the Plan and any Award Agreement shall
be determined in accordance with the laws of the State of Delaware.
(j) Severability. If any provision of the Plan or any Option is or
becomes or is deemed to be invalid, illegal, or unenforceable in any
jurisdiction or as to any Person or Option, or would disqualify the Plan or any
Option under any law deemed applicable by the Committee, such provision shall be
construed or deemed amended to conform to the applicable laws, or if it cannot
be construed or deemed amended without, in the determination of the Committee,
materially altering the intent of the Plan or the Option, such provision shall
be stricken as to such jurisdiction, Person or Option and the remainder of the
Plan and any such Option shall remain in full force and effect.
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(k) Other Laws. The Committee may refuse to issue or transfer any
Shares or other consideration under an Option if, acting in its sole discretion,
it determines that the issuance or transfer of such Shares or such other
consideration might violate any applicable law or regulation or entitle the
Company to recover the same under Section 16(b) of the Exchange Act, and any
payment tendered to the Company by a Participant, other holder or beneficiary in
connection with the exercise of such Option shall be promptly refunded to the
relevant Participant, holder or beneficiary. Without limiting the generality of
the foregoing, no Option granted hereunder shall be construed as an offer to
sell securities of the Company, and no such offer shall be outstanding, unless
and until the Committee in its sole discretion has determined that any such
offer, if made, would be in compliance with all applicable requirements of the
U.S. federal and any other applicable securities laws.
(l) No Trust or Fund Created. Neither the Plan nor any Option shall
create or be construed to create a trust or separate fund of any kind or a
fiduciary relationship between the Company or any Affiliate and a Participant or
any other Person. To the extent that any Person acquires a right to receive
payments from the Company or any Affiliate pursuant to an Option, such right
shall be no greater than the right of any unsecured general creditor of the
Company or any Affiliate.
(m) No Fractional Shares. No fractional Shares shall be issued or
delivered pursuant to the Plan or any Option, and the Committee shall determine
whether cash, other securities, or other property shall be paid or transferred
in lieu of any fractional Shares or whether such fractional Shares or any rights
thereto shall be canceled, terminated, or otherwise eliminated.
(n) Headings. Headings are given to the Sections and subsections of the
Plan solely as a convenience to facilitate reference. Such headings shall not be
deemed in any way material or relevant to the construction or interpretation of
the Plan or any provision thereof.
SECTION 10. Term of the Plan.
(a) Effective Date. The Plan shall be effective as of June 29, 1999.
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(b) Expiration Date. No Option shall be granted under the Plan after
June 29, 2009. Unless otherwise expressly provided in the Plan or in an
applicable Award Agreement, any Option granted hereunder may, and the authority
of the Board or the Committee to amend, alter, adjust, suspend, discontinue, or
terminate any such Option or to waive any conditions or rights under any such
Option shall, continue after June 29, 2009.