EXHIBIT 99.1
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THE PENN TRAFFIC COMPANY
PHANTOM STOCK AWARD AGREEMENT
THIS PHANTOM STOCK AWARD AGREEMENT (this "AGREEMENT"), is entered into
as of this ___day of _____, _____, by and between The Penn Traffic Company, a
Delaware corporation (the "COMPANY"), and __________ (the "PARTICIPANT").
Capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in The Penn Traffic Company 2006 Omnibus Award
Plan (the "PLAN").
WHEREAS, the Board acting as the Committee administering the Plan has
determined that it is in the best interests of the Company and its
stockholders to grant to the Participant as of the date hereof (the "EFFECTIVE
DATE") the award of phantom shares provided for herein (the "PHANTOM STOCK
AWARD"), such grant to be subject to the terms set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants
hereinafter set forth, the parties hereto agree as follows:
1. GRANT. Subject to the terms and conditions set forth therein,
the Company hereby grants to the Participant ______ phantom shares
(collectively, the "PHANTOM SHARES"). Each Phantom Share shall represent the
right to receive on the "Settlement Date" (as defined below) a cash payment
equal to the Fair Market Value of one share of Common Stock on the Settlement
Date.
2. INCORPORATION BY REFERENCE, ETC. The provisions of the Plan
are hereby incorporated herein by reference. Except as otherwise expressly set
forth herein, this Agreement shall be construed in accordance with the
provisions of the Plan and any capitalized terms not otherwise defined in this
Agreement shall have the definitions set forth in the Plan. The Committee
shall have final authority to interpret and construe the Plan and this
Agreement and to make any and all determinations under them, and its decision
shall be binding and conclusive upon the Participant and his legal
representative in respect of any questions arising under the Plan or this
Agreement.
3. SETTLEMENT; SETTLEMENT DATE.
(a) Subject to the provisions of Section 5 below, the
Phantom Shares shall be settled by the Company on the Settlement Date
(as defined below). Such settlement shall be made by delivering to the
Participant a single lump sum cash payment (the "SETTLEMENT AMOUNT")
equal to the Fair Market Value of the Phantom Shares on the Settlement
Date.
(b) For purposes of this Agreement, "Settlement Date"
shall mean the date on which the earliest of the following occurs:
(i) One business day following the date upon which
the Participant ceases to be a member of the Board for any reason;
(ii) Change in Control;
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(iii) The Participant becomes "Disabled" within the
meaning of Section 409A(a)(2)(C) of the Code; or
(iv) Death of the Participant.
4. EXPIRATION DATE. Subject to Section 6 hereof, the Phantom
Shares shall expire at 11:59 p.m. Eastern Time ("ET") on the Settlement Date
(the "PHANTOM SHARES PERIOD").
5. MISCELLANEOUS.
(a) COMPLIANCE WITH LEGAL REQUIREMENTS. The granting and
settling of the Phantom Shares, and any other obligations of the
Company under this Agreement shall be subject to all applicable laws
of any governmental authority with jurisdiction over this Agreement,
and to all rules and regulations and to such approvals by any
regulatory or governmental agency as may be required. The Company, in
its sole discretion, may postpone the settlement of Phantom Shares as
the Company may consider appropriate and may require the Participant
to make such representations and furnish such information as it may
consider appropriate in connection with the issuance or delivery of
the Settlement Amount in compliance with applicable laws, rules and
regulations.
(b) TRANSFERABILITY. Except as described in Section 12(k)
of the Plan, the Phantom Shares shall not be transferable by the
Participant other than by will or the laws of descent and
distribution, and any such purported transfer shall be void and
unenforceable against the Company; provided that the designation of a
beneficiary shall not constitute a transfer or encumbrance.
(c) RIGHTS AS STOCKHOLDER. The Participant shall not be
deemed for any purpose to be the owner of any shares of Common Stock
subject to this Agreement.
(d) TAX WITHHOLDING. Notwithstanding any other provision
of this Agreement, the Company may withhold from amounts payable under
this Agreement all taxes that are required to be withheld by
applicable law or regulation.
(e) ADJUSTMENTS FOR STOCK SPLITS, STOCK DIVIDENDS, ETC.
The number of Phantom Shares may be adjusted as determined by the
Committee in its sole discretion, as is fully set forth in Section 13
of the Plan. Without limiting the foregoing, the number of Phantom
Shares may be so adjusted in case of any extraordinary cash dividends,
stock splits, reverse stock splits, recapitalizations or
reorganizations occurring after the Effective Date.
(f) WAIVER. Any right of the Company contained in this
Agreement may be waived in writing by the Board. No waiver of any
right hereunder by any party shall operate as a waiver of any other
right, or as a waiver of the same right with respect to any subsequent
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occasion for its exercise, or as a waiver of any right to damages. No
waiver by any party of any breach of this Agreement shall be held to
constitute a waiver of any other breach or a waiver of the
continuation of the same breach.
(g) NOTICES. Any notice, consent, request or other
communication made or given in accordance with this Agreement shall be
in writing and shall be deemed to have been duly given when actually
received or, if mailed, three days after mailing by registered or
certified mail, return receipt requested, or one business day after
mailing by a nationally recognized express mail delivery service with
instructions for next-day delivery, to those persons listed below at
their following respective addresses or at such other address or
person's attention as each may specify by notice to the others:
To the Company:
The Penn Traffic Company
X.X. Xxx 0000
Xxxxxxxx, XX 00000-0000
Attention: General Counsel
To the Participant:
The most recent address for the Participant
in the records of the Company. The
Participant hereby agrees to promptly
provide the Company with written notice of
any change in the Participant's address for
so long as this Agreement remains in
effect.
(h) SEVERABILITY. The invalidity or unenforceability of
any provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, and each
other provision of this Agreement shall be severable and enforceable
to the extent permitted by law.
(i) NO RIGHTS TO EMPLOYMENT, ETC. Nothing contained in
this Agreement shall be construed as giving the Participant any right
to be retained, in any position, as an employee, consultant or
director of the Company or its Affiliates or shall interfere with or
restrict in any way the right of the Company or its Affiliates, which
are hereby expressly reserved, to remove, terminate or discharge the
Participant at any time for any reason whatsoever.
(j) NO ACQUIRED RIGHTS. In participating in the Plan, the
Participant acknowledges and accepts that the Committee has the power
to amend or terminate the Plan at any time and that the opportunity
given to the Participant to participate in the Plan is entirely at the
discretion of the Committee and does not obligate the Company or any
of its Affiliates to offer such participation in the future (whether
on the same or different terms).
(k) SECTION 409A. Notwithstanding anything in this
Agreement to the contrary, any payments hereunder that would be
subject to an additional or accelerated income tax under Section 409A
of the Code shall be deferred until the earliest date that such
payments may be made without the imposition of such tax.
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(l) BENEFICIARY. The Participant may file with the Company
a written designation of a beneficiary on such form as may be
prescribed by the Company and may, from time to time, amend or revoke
such designation. If no designated beneficiary survives the
Participant, the executor or administrator of the Participant's estate
shall be deemed to be the Participant's beneficiary.
(m) SUCCESSORS. The terms of this Agreement shall be
binding upon and inure to the benefit of the Company and its
successors and assigns, and of the Participant and the beneficiaries,
executors, administrators, heirs and successors of the Participant.
(n) ENTIRE AGREEMENT. This Agreement contains the entire
agreement and understanding of the parties hereto with respect to the
subject matter contained herein and supersedes all prior
communications, representations and negotiations in respect thereto.
(o) MODIFICATIONS. No change, modification or waiver of
any provision of this Agreement shall be valid unless the same be in
writing and signed by the parties hereto.
(p) BOUND BY PLAN. By signing this Agreement, Participant
acknowledges that he has received a copy of the Plan and has had an
opportunity to review the Plan and agrees to be bound by all the terms
and provisions of the Plan
(q) GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE WHOLLY
PERFORMED WITHIN THAT STATE. ANY ACTION TO ENFORCE THIS AGREEMENT MUST
BE BROUGHT IN A COURT SITUATED IN, AND THE PARTIES HEREBY CONSENT TO
THE JURISDICTION OF, COURTS SITUATED IN NEW YORK COUNTY, NEW YORK.
EACH PARTY HEREBY WAIVES THE RIGHTS TO CLAIM THAT ANY SUCH COURT IS AN
INCONVENIENT FORUM FOR THE RESOLUTION OF ANY SUCH ACTION.
(r) JURY TRIAL WAIVER. THE PARTIES EXPRESSLY AND KNOWINGLY
WAIVE ANY RIGHT TO A JURY TRIAL IN THE EVENT ANY ACTION ARISING UNDER
OR IN CONNECTION WITH THIS AGREEMENT IS LITIGATED OR HEARD IN ANY
COURT.
(s) HEADINGS/INTERPRETATIONS. The headings of the Sections
hereof are provided for convenience only and are not to serve as a
basis for interpretation or construction, and shall not constitute a
part, of this Agreement. The term "COMPANY" as used herein with
reference to the employment of the Participant or the termination
thereof shall refer to the Company, and each of its direct and
indirect subsidiaries.
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(t) SIGNATURE IN COUNTERPARTS. This Agreement may be
signed in counterparts, each of which shall be an original, with the
same effect as if the signatures thereto and hereto were upon the same
instrument. The parties hereto confirm that any facsimile copy of
another party's executed counterpart of this Agreement (or its
signature page thereof) will be deemed to be an executed original
thereof.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first set forth above. The Penn Traffic Company
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By:
Title:
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NAME
Participant
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NAME
