UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
June 26, 2008
Date of Report (Date of earliest event reported)
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THE GREAT ATLANTIC & PACIFIC
TEA COMPANY, INC.
(Exact name of registrant as specified in its charter)
Maryland 1-04141 13-1890974
(State or other jurisdiction of (Commission file number) (I.R.S. Employer
incorporation or organization) Identification No.)
Two Paragon Drive
Montvale, New Jersey 07645
(Address of principal executive offices)
(201) 573-9700
(Registrant's telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
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Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
__ Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
__ Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
__ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act (17 CFR 240.14d- 2(b))
__ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
Act (17 CFR 240.13e-4(c))
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Item 5.02(e) Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
At a special meeting of stockholders of The Great Atlantic & Pacific
Tea Company, Inc. (the "Company") held on June 26, 2008 (the "Special Meeting"),
the stockholders of the Company approved the Company's 2008 Long-Term Incentive
and Share Award Plan (the "2008 LTIP"). A copy of the 2008 LTIP is included as
Appendix B to the Company's Definitive Proxy Statement (the "Definitive Proxy
Statement") that was filed with the Securities and Exchange Commission on June
3, 2008 and is incorporated by reference as Exhibit 10.1 to this Current Report
on Form 8-K. The 2008 LTIP was adopted by the Company's Board of Directors (the
"Board"), subject to stockholder approval. The 2008 LTIP became effective on
June 26, 2008 as a result of its approval by the Company's stockholders. The
total votes cast for this proposal represented a majority of the outstanding
shares of the Company's common stock entitled to vote on such proposal. A total
of 4,750,000 shares of the Company's common stock have been reserved for
issuance pursuant to awards under the 2008 LTIP, subject to its anti-dilution
provisions. All awards under the 2008 LTIP are granted at the discretion of the
Human Resources & Compensation Committee of the Board.
The material terms of the 2008 LTIP are summarized in the Definitive
Proxy Statement under the caption "APPROVAL OF THE ADOPTION OF THE COMPANY'S
2008 LONG TERM INCENTIVE AND SHARE AWARD PLAN (PROPOSAL 4)." The information
contained under the above-referenced caption in the Definitive Proxy Statement
is incorporated herein by reference.
Item 8.01 Other Events
Also at the Special Meeting, the Company's stockholders voted in favor
of proposals providing for: (1) the amendment of the Company's Charter to
increase the total number of shares of common stock which the Company has
authority to issue from 80,000,000 shares to 160,000,000 shares; (2) the
issuance of the Company's common stock pursuant to a net share settlement of the
warrants issued in connection with the Company's convertible notes offering in
December 2007; and (3) the issuance of an additional 1,577,569 shares of the
Company's common stock pursuant to the share lending agreements entered into in
connection with the Company's convertible notes offering in December 2007, which
proposals were previously disclosed in the Definitive Proxy Statement. The total
votes cast for proposal (1) above represented a two-thirds majority of the
outstanding shares of the Company's common stock entitled to vote on such
proposal. The total votes cast for proposals (2)and (3) above represented a
majority of the outstanding shares of the Company's common stock entitled to
vote on such proposals. Attached hereto as Exhibit 3.1 and incorporated herein
by reference is the Company's Articles of Amendment and Restatement of the
Articles of Incorporation.
Item 9.01. Exhibits
(d) Exhibits. The following exhibit is filed herewith:
Exhibit No. Description
-----------------------
3.1 Articles of Amendment and Restatement of the Articles of Incorporation
of The Great Atlantic & Pacific Tea Company, Inc.
10.1 The Great Atlantic & Pacific Tea Company, Inc. Long-Term Incentive and
Share Award Plan (incorporated by reference to Appendix B to the
Company's Schedule 14A Definitive Proxy Statement, filed with the
Securities and Exchange Commission on June 3, 2008).
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: July 1, 2008
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
By: /s/ Allan Richards
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Allan Richards, Senior Vice President, Human
Resources, Labor Relations, Legal Services &
Secretary
EXHIBIT INDEX
Exhibit No. Description
3.1 Articles of Amendment and Restatement of the Articles of Incorporation
of The Great Atlantic & Pacific Tea Company, Inc.
Exhibit 3.1
ARTICLES OF AMENDMENT AND RESTATEMENT
OF THE
ARTICLES OF INCORPORATION
OF
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
The Great Atlantic & Pacific Tea Company, Inc., a Maryland corporation
(the "Corporation"), hereby certifies to the State Department of Assessments
and Taxation of Maryland that:
FIRST: The Corporation desires to amend and restate its charter as
currently in effect.
SECOND: The charter of the Corporation is hereby amended and restated
in its entirety to read as set forth on Exhibit A attached hereto and, upon
acceptance for record of these Articles of Amendment and Restatement by the
State Department of Assessments and Taxation of Maryland, the provisions set
forth in these Articles of Amendment and Restatement will be all of the
provisions of the charter of the Corporation as currently in effect.
THIRD: The amendments to the Corporation's charter were advised by the
Board of Directors at a meeting of the Board of Directors duly called and
noticed at which a quorum of directors was at all times present and voting and
approved by the stockholders at a special meeting of stockholders held on June
26, 2008, as required by law.
FOURTH: This restatement of the charter of the Corporation has been
authorized by the unanimous written consent of the entire board of directors.
FIFTH: These Articles of Amendment and Restatement increase the
authorized stock of the Corporation as set forth in Article VI of the attached
Exhibit A. Immediately before the amendment, there were eighty-three million
shares of stock authorized under the Corporation's charter, of which three
million shares were Preferred Stock without par value and eighty million shares
were common stock par value one dollar for an aggregate par value of all shares
of all classes of eighty million dollars. The charter of the Corporation, as
amended, authorizes the Corporation to issue one hundred sixty-three million
shares of stock, of which three million shares are Preferred Stock without par
value and one hundred sixty million shares are common stock par value one dollar
for an aggregate par value of all shares of all classes of one-hundred sixty
million dollars.
SIXTH: These Articles of Amendment do not change the information
contained in the Corporation's charter as required by subsection (b)(2)(i) of
Section 2-607 of the Maryland General Corporation Law.
SEVENTH: The current address of the principal office of the
Corporation is as set forth in Article IV of the attached Exhibit A.
EIGHTH: The name and address of the Corporation's current resident
agent is as set forth in Article IV of the attached Exhibit A.
NINTH: The number of directors of the Corporation and the names of the
directors currently serving on the Board of Directors are as set forth in
Article V of the attached Exhibit A.
IN WITNESS WHEREOF, the Corporation has caused these presents to be
signed in its name and on its behalf by its Senior Vice President and its
corporate seal to be hereunder affixed and attested by its Secretary on this 1st
day of July, 2008, and its Senior Vice President acknowledges that these
Articles of Amendment and Restatement are the act and deed of the Corporation
and, under the penalties of perjury, that the matters and facts set forth herein
with respect to authorization and approval are true in all material respects to
the best of her knowledge, information and belief.
ATTEST:
THE GREAT ATLANTIC & PACIFIC
TEA COMPANY, INC.
/s/Allan Richards (SEAL By: /s/Brenda Galgano (SEAL)
-------------------- ------------------
Name: Allan Richards Name: Brenda Galgano
Title: Secretary Title: Senior Vice President & CFO
EXHIBIT A
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
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CHARTER
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I.
We, the subscribers, Royall Victor, Edward H. Green and Laurence A. Crosby, the
post office address of all of whom is 49 Wall Street, New York, New York, all
being of full age, do under and by virtue of the General Laws of the State of
Maryland authorizing the formation of corporations, associate ourselves with the
intention of forming a corporation.
II.
The name of the corporation (which is hereinafter called the "Corporation") is:
"THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC."
III.
The purpose for which the Corporation is formed and the business or objects to
be carried on and promoted by it are as follows:
To buy, or otherwise acquire, import, manufacture, prepare for market,
sell or otherwise dispose of, export and deal in and with, all kinds of teas,
coffees, cocas, chocolates, soups, syrups, beverages, drinks and materials for
the manufacture thereof, groceries, vegetables, fruits, meats, fish, all
products of the farm or dairy foods and food products for human use or
consumption, feed and feedstuffs for animal consumption, tobacco, waters,
perfumes, fats, oils, soaps, and soap powders, candies, confections, gums of
every kind and description whatsoever.
To raise, breed, acquire, use, sell and otherwise deal in cattle,
sheep, swine, horses and other livestock and poultry; to plant cultivate, raise,
produce, use, acquire, sell and otherwise deal in vegetables, fruits, cereals
and other products of the farm, plantation or garden; to buy, lease or otherwise
acquire and to own, use, develop, operate, sell, let or otherwise dispose of
plantations, pastures, farms of every kind and description, woodlands and any
other land or any interest therein, to acquire, lease, own, use, operate, sell,
let or otherwise dispose of fisheries and their products of every kind and
description, and to acquire, manufacture, import, produce, prepare, use, export,
sell or otherwise deal in any of the products or by-products of any of the
foregoing and any other articles in which any of the said products or
by-products form a component, part in any form whatsoever.
To acquire, import, manufacture, produce, prepare for market, use,
export, sell and deal and trade in labels, boxes, packages, containers of every
material, glass, glass jars, glassware, earthenware, china, pottery, tin and
tin-plate and cans.
To construct, acquire, lease own, use, operate, sell, let and otherwise
dispose of factories, mills, works, plants, and refineries of every kind and
description for the manufacture and production of products of every kind and
description.
To construct, acquire, lease, own, use, operate, sell, let and
otherwise dispose of ice-making plants, refrigerating and cold storage plants
and refrigerator cars and buy, sell and deal in, the products and by-products
thereof.
To construct, acquire, lease, own, use, operate, sell, let and
otherwise dispose of slaughter houses and packing houses of every description,
grain or other elevators warehouses, hotels, dwelling, houses, garages, wharves,
piers, docks and other buildings and structures, and ships, vessels, boats,
automobiles, trucks and other vehicles for transportation.
To maintain and conduct stores for the sale of any articles of commerce
at wholesale or retail or both.
To carry on the business of warehousing and all business incidentals
thereto, including the issuing of warehouse receipts, negotiable or otherwise
and the making of advances or loans upon the security of goods warehoused.
To manufacture, purchase or otherwise acquire, own, mortgage, pledge,
sell, assign and transfer or otherwise dispose of, invest, trade, deal in and
deal with goods, wares and merchandise and real and personal property of every
class and description.
To acquire, lease, hold, use, sell, assign, let, grant licenses in,
respect of, mortgage, pledge or otherwise dispose of letters patent of the
United States of America or any foreign country, patent rights, licenses,
privileges, inventions, improvements, processes, formulae, copyrights,
trade-marks, trade names and brands, relating to or useful in connection with
any business of the Corporation.
To act as commission agent or as general or special agent.
To acquire the goodwill, rights, property and assets of any, and all
kinds of any individual, firm, association or corporation and to pay for the
same in cash, stock, bonds, debentures, securities or other property of this
Corporation or otherwise in any manner permitted by law.
To acquire by purchase, subscription or otherwise and to invest in,
hold, sell, assign, or otherwise dispose of, mortgage of, pledge bonds or other
obligations or securities of any individual, firm, association, government or
subdivision thereof and stocks, bonds, securities or other obligations of any
other corporation or corporations, to exchange therefor its stock, bonds or
other obligations, as well as any other of its property, in any manner permitted
by law, and as owner of any such stocks, bonds, securities or other obligations
to exercise all the rights, powers and privileges of ownership including the
right to vote thereon for any and all purposes to assist individuals, firms,
associations or corporations by subscribing to capital or otherwise, to make
loans to or otherwise aid any individual, firm, association or corporation, to
make or give any guarantee of or respecting stocks, securities, bonds, contracts
or other obligations and do any and all acts or things toward the preservation,
protection, improvement or enhancement in value of any stocks, bonds, securities
or other obligations held by the Corporation so far as may be permitted by law.
To purchase and otherwise acquire shares of stock of the Corporation
and, to the extent permitted by law, to hold, re-issue, sell, assign, mortgage,
pledge or otherwise dispose of or retire shares of its stock so acquired or
purchased; and to redeem or purchase for retirement or redemption shares of its
own stock.
To cause to be formed, merged, consolidated, or reorganized and to
promote and aid in any way permitted by law the formation, merger, consolidation
or reorganization of any corporation.
To borrow money, to issue bonds, debentures, notes or obligations of
the Corporation from time to time and for any of the objects or purposes of the
Corporation and to secure the same by mortgage, pledge, deed of trust, or
otherwise and to sell or otherwise dispose of any or all of such bonds,
debentures, notes or obligations in such manner and upon such terms as the Board
of Directors may deem convenient.
To carry on any business herein provided for, in its own name for its
own use and account or as agent or for or with or through or with the aid of or
in the name of any other persons, firms, associations or corporations.
To do and transact all acts, business and things incident to or in any
manner connected with or necessary or convenient to carry out any of the
purposes or objects above expressed.
To have one or more offices to conduct its business in any or all of
the branches in the State of Maryland and in other states and territories of the
United States and in the District of Columbia and in any or all of the
dependencies, colonies or possessions of the United States of America and in any
foreign countries, and to acquire, hold, own, mortgage, sell convey or otherwise
dispose of real and personal property of every class and description and to
maintain offices and agencies either within or anywhere without the State of
Maryland.
In general, to do any and all things, exercise any and all powers which
it may now or hereafter be lawful for the Corporation to do or exercise under
and in pursuance of the laws which may be now or hereafter applicable to the
Corporation.
The foregoing clauses shall be construed both as objects and powers but shall
not be held or be deemed to limit or restrict in any manner the powers of this
Corporation.
IV.
The post office address of the place at which the principal office of the
Corporation in this State will be located is HSC Agent Services, Inc., 245 West
Chase Street, Baltimore, Maryland 21202. The resident agent of the Corporation
is HSC Agent Services, Inc., whose post office address is 245 West Chase St.,
Baltimore, Maryland 21201. Said Resident Agent is a corporation of the State of
Maryland.
V.
The number of Directors of the Corporation shall be nine, which number
may be increased or decreased pursuant to the bylaws of the Corporation and
shall never be less than three. The names of the current directors of the
Corporation who shall act until their successors are duly elected and qualified
are:
John D. Barline
Jens-Jurgen Bockel
Bobbie Gaunt
Andreas Guldin
Christian W.E. Haub
Dan P. Kourkoumelis
Edward Lewis
Gregory Mays
Maureen B. Tart-Bezer
Directors need not be stockholders in the Corporation.
VI.
The total number of shares of stock which the Corporation shall have
authority to issue is one hundred sixty-three million shares, of which three
million shares are Preferred Stock without par value, issuable in one or more
series as provided this ARTICLE VI, and one hundred sixty million shares are
common stock par value one dollar for an aggregate par value of all shares of
all classes of one hundred sixty million dollars.
The Board of Directors, upon execution and filing of articles supplementary to
the Articles of Incorporation, is authorized to issue Preferred Stock from time
to time in one or more series, and to classify or reclassify any unissued shares
by fixing or altering in any one or more respects, from time to time, before
issuance of such shares, the designations, performances, rights, voting powers,
restrictions, and qualifications of, the dividends on, the times and prices of
redemption of, and the conversion rights of the shares of any such series
including without limitation the stated capital value, dividend rights, dividend
rates, conversion rights, voting rights, rights and terms of redemption
(including sinking fund provisions), the redemption price or prices, the
liquidation rights, and the number of shares constituting any such series, or
any or all of them, and to increase or decrease (but not below the number of
shares of such series then outstanding) the number of shares of any series
subsequent to the issue of shares of such series. In case the number of shares
of any series shall be so decreased, the shares constituting such decrease shall
resume their original status as authorized and unissued shares of Preferred
Stock not classified as shares of any series.
VII.
The Board of Directors of the Corporation is hereby empowered to authorize the
issuance from time to time of shares of its stock of any class, whether now or
hereafter authorized, or securities convertible into shares of its stock of any
class or classes, whether now or hereafter authorized.
No holders of stock of the Corporation, of whatever class, shall have any
preemptive right of subscription to any shares of any class of stock or to any
securities convertible into shares of stock of the Corporation, nor any right of
subscription to any thereof other than such, if any, as the Board of Directors
in its discretion may determine and at such price as the Board of Directors in
its discretion may fix; and any shares or convertible securities which the Board
of Directors may determine to offer for subscription to holders of stock may, as
the Board of Directors shall determine, be offered to holders of any class or
classes of stock at the time existing to the exclusion of holders of any or all
other classes at the time existing.
The Corporation reserves the right from time to time to make any amendment of
its charter now or hereafter authorized by law, including any amendment which
alters the contract rights, as expressly set forth in its charter, of any
outstanding stock.
The duration of the Corporation is to be perpetual.
VIII.
Any officer and any employee may be removed (except from the office of Director)
at any time by a vote of a majority of the whole Board of Directors. Any officer
and any employee not elected or appointed by the Board of Directors may be
removed at any time by any Committee or officer or employee upon whom such power
or removal may be conferred by the bylaws or by vote of the Board of Directors.
Any Director may be removed from the office at any time by the vote of a
majority of all the shares of stock outstanding and entitled to vote at that
time for the election of Directors.
The Corporation shall indemnify and advance expenses to any person who is or was
a director or officer of the Corporation to the maximum extent now or hereafter
permitted by law in connection with any threatened, pending or completed action,
suit or proceeding (whether civil, criminal, administrative or investigative)
arising out of such person's service as a director or officer of the Corporation
or of another organization at the Corporation's request.
The Corporation shall indemnify any person who is or was an employee or agent of
the Corporation as and to the extent required by law and may, as authorized at
any time by general or specific action of the Board of Directors, further
indemnify such individuals to the maximum extent now or hereafter permitted by
law, in connection with any threatened, pending or completed action, suit or
proceeding (whether civil, criminal, administrative or investigative) arising
out of such person's service in such capacity to the Corporation or to another
organization at the Corporation's request.
To the maximum extent permitted by Maryland law, as in effect from time to time,
no director or officer of the Corporation shall be liable to the Corporation or
its stockholders for money damages. Neither the amendment nor repeal of this
Article, nor the adoption or amendment of any provision of the charter or bylaws
inconsistent with this Article, shall apply to or affect in any respect the
applicability of the preceding sentence with respect to any act or failure to
act which occurred prior to such amendment, repeal or adoption.
The Corporation may purchase and maintain insurance on behalf of any person who
is or was a director, officer, employee, or agent of the Corporation or who is
or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against any liability asserted against him and incurred by him
in or arising out of his position, whether or not the Corporation would have the
power to indemnify him hereunder.
No contract or other transaction between the Corporation and any other
corporation shall be affected or invalidated by the fact that any one or more of
the directors of the Corporation is or are interested in or is or are a director
or directors or officer or officers of such other corporation, and no contract
or other transaction between the Corporation and any other person or firm shall
be affected or invalidated by the fact that any one or more directors of the
Corporation is a party to, or are parties to, or interested in, such contract or
transaction; provided that, if such contract or other transaction is one which
requires action by the Board of Directors of the Corporation, the nature and
extent of the interest of such director or directors in such contract or other
transaction and/or the fact that such director or directors is or are a director
or directors or officer or officers of such other corporation is disclosed at
the meeting of the Board of Directors at which such contract or other
transaction is authorized and such director or directors abstains or abstain
from voting with respect thereto.