SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
AMENDMENT NO. 1
(X) ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For fiscal year ended December 1, 2002
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from________________ to___________________
Commission File No. 1-7013
GRISTEDE'S FOODS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-1829183
(State or Other Jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
823 ELEVENTH AVENUE, NEW YORK, NY 10019-3535
(Address of Principal Executive Offices) (Zip Code)
(212) 956-5803
(Registrant's Telephone Number, Including Area Code)
Securities registered pursuant to Section 12 (b) of the Act:
Title of each class Name of each exchange on which registered
COMMON STOCK, $0.02 PAR VALUE AMERICAN STOCK EXCHANGE
Securities registered pursuant to Section 12(g) of the Act:
NONE
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13, or 15(d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the registrant
was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
-
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of the registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [ ]
As of February 25, 2003, 19,636,574 shares of the registrant's common stock,
$0.02 par value, were outstanding.
The aggregate market value of the common stock held by nonaffiliates of the
registrant (i.e., excluding shares held by executive officers, directors, and
control persons as defined in Rule 405) on May 31, 2002 (the last business day
of the second fiscal quarter) was $1,678,553 computed at the closing price on
that date.
TABLE OF CONTENTS
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PART IV
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Item 15. Exhibits, Financial Statement Schedules and Reports on Form 8-K
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SIGNATURES
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CERTIFICATION
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EXHIBIT 10.13
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EXHIBIT 99.1
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TABLE OF CONTENTS
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EXPLANATORY NOTE
This amendment of the Annual Report on Form 10-K/A is being filed for the sole
purpose of (a) filing Exhibit 10.13 and (b) to designate the Certification
pursuant to 18 U.S.C. 1350, as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002, as Exhibit 99.1. Such Certification was filed with
the Annual Report on Form 10-K filed on March 5, 2003.
PART IV
ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) Exhibits:
Number Description
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3.1 Amended and Restated Certificate of Incorporation of the Registrant.
Incorporated by reference to Exhibit 3.1 to the Registrant's Annual
Report on Form 10-K for the fiscal year ended February 28, 1990 (the
"1990 10-K").
3.2 Certificate of Amendment to Amended and Restated Certificate of
Incorporation of the Registrant. Incorporated by reference to Exhibit
3.2 to the Registrant's Annual Report on Form 10-KSB for the fiscal
year ended February 27, 1994 (the "1994 10-KSB").
3.3 Certificate of Amendment of Certificate of Incorporation of the
Company, dated November 4, 1997. Incorporated by reference to Exhibit
3.4 to the Registrant's Annual Report on Form 10-K for the transition
period ended November 30, 1997 (the "Transition Period 10-K").
3.4 Certificate of Amendment of Certificate of Incorporation of the
Company, dated August 13, 1999. Incorporated by reference to Exhibit
3.4 to the Registrant's Annual Report on Form 10-K for the fiscal year
ended December 3, 2000 (the "2000 10-K").
3.5 Certificate of Amendment of Certificate of Incorporation of the
Company dated November 10, 2000. Incorporated by reference to Exhibit
3.5 to the 2000 10-K.
3.6 Amended and Restated Bylaws of the Registrant. Incorporated by
reference to Exhibit 3.2 to the 1990 10-K.
10.1 Form of Indemnification Agreement dated as of January 1, 1994 between
the Registrant and each director of the Registrant. Incorporated by
reference to Exhibit 10.11 to the 1994 10-KSB.
10.2 Form of Indemnification Agreement dated as of January 1, 1994 between
the Registrant and each officer of the Registrant. Incorporated by
reference to Exhibit 10.12 to the 1994 10-KSB.
10.3 1994 Stock Option Plan. Incorporated by reference to Exhibit 10.12 of
the Company's Annual Report on Form 10-KSB for the fiscal year ended
February 26, 1995 ("1995 10-KSB").
10.4 Director Stock Option Plan. Incorporated by reference to Exhibit 10.13
of the Company's 1995 10-KSB.
10.5 Merger Agreement. Incorporated by reference to Exhibit A to the
Company's definitive Proxy Statement for the Special and Annual
Meeting of Stockholders of the Company held on October 31, 1997.
10.6 Management Agreement dated November 10, 1997 between Namdor Inc., G
Remainder Corp. and S Remainder Corp. Incorporated by reference to
Exhibit 10.7 to the Transition Period 10-K.
10.7 Agreement dated as of March 1, 2000 between G Remainder Corp. and
Gristede's Operating Corp. Incorporated by reference to Exhibit 10.8
to the Company's annual report in Form 10-K for the fiscal year ended
November 28, 1999 (the "1999 10-K").
10.8 1998 Stock Option Plan. Incorporated by reference to Exhibit 10.10 to
the Transition Period 10.K.
10.9 Agreement dated March 1, 2000 between John Catsimatidis and the
Company. Incorporated by reference to Exhibit 10.11 to the 1999 10-K.
10.10 Agreement dated May 10, 2000 between S Remainder Corp and Namdor Inc.
Incorporated by reference to Exhibit 10.17 to the Company's Annual
Report on Form 10-K for the fiscal year ended December 3, 2000.
10.11 Agreement dated December 3, 2000 between John Catsimatidis and the
Company. Incorporated by reference to Exhibit 10.18 to the Company's
Annual Report on Form 10-K for the fiscal year ended December 3, 2000.
10.12 Amended and Restated Loan Agreement (the "Loan Agreement") dated as of
October 31, 2001 among the Company, Citibank, Israel Discount Bank of
New York, and Bank Leumi USA. Incorporated by reference to Exhibit
10.22 to the Company's Annual Report on Form 10-K for the fiscal year
ended December 2, 2001.
*10.13 First Amendment to Loan Agreement dated as of November 30, 2002 among
the Company, Citibank, N.A., Israel Discount Bank of New York and Bank
Leumi USA.
11. Statement re: computation of per share income (loss). Not required.
21. Listing of the Company's subsidiaries all of which are wholly owned by
the Company.
Subsidiaries State of Incorporation
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Namdor Inc. New York
City Produce Operating Corp. New York
Gristede's Foods NY Inc. New York
Gristede's Delivery Service, Inc. New York
*99.1 Certification pursuant to 18 U.S.C. Section 1350, as adapted pursuant
to Section 906 of the Sarbanes-Oxley Act of 2002.
* Filed herewith.
(b) The Company did not file any Current Reports on Form 8-K during the last
quarter of the period covered by this report.
SIGNATURES
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Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Registrant caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
GRISTEDE'S FOODS, INC.
By: /s/ John A. Catsimatidis
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John A. Catsimatidis
Chairman of the Board
SIGNATURE TITLE DATE
/s/ John A. Catsimatidis Chairman of Board, President and Chief April 7, 2003
-------------------------- Executive Officer (Chief Executive Officer
JOHN A. CATSIMATIDIS and Chief Operating Officer)
/s/ Martin R. Bring Director April 7, 2003
--------------------------
MARTIN R. BRING
FREDERICK SELBY Director
/s/ Kishore Lall Director April 7, 2003
--------------------------
KISHORE LALL
/s/ Gary Pokrassa Chief Financial Officer (Chief Financial April 7, 2003
-------------------------- Officer and Chief Accounting Officer
GARY POKRASSA
/s/ Martin Steinberg Director April 7, 2003
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MARTIN STEINBERG
/s/ Edward P. Salzano Director April 7, 2003
--------------------------
EDWARD P. SALZANO
/s/ Andrew J. Maloney Director April 7, 2003
--------------------------
ANDREW J. MALONEY
ANNUAL AND QUARTERLY CERTIFICATIONS
PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, John A. Catsimatidis, certify that:
1. I have reviewed this annual report on Form 10-K/A of Gristede's Foods, Inc.
2. Based on my knowledge, this annual report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered by
this annual report;
3. Based on my knowledge, the financial statements, and other financial
information included in this annual report, fairly present in all material
respects the financial condition, results of operations and cash flows of
the registrant as of, and for, the periods presented in this annual report;
4. The registrant's other certifying officers and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined
in Exchange Act Rules 13a-14 and 15d-14) for the registrant and have:
(a) designed such disclosure controls and procedures to ensure that
material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this annual report
is being prepared;
(b) evaluated the effectiveness of the registrant's disclosure controls
and procedures as of a date within 90 days prior to the filing date of
this annual report (the "Evaluation Date"); and
(c) presented in this annual report our conclusions about the
effectiveness of the disclosure controls and procedures based on our
evaluation as of the Evaluation Date;
5. The registrant's other certifying officers and I have disclosed, based on
our most recent evaluation, to the registrant's auditors and the audit
committee of registrant's board of directors (or persons performing the
equivalent function):
(a) all significant deficiencies in the design or operation of internal
controls which could adversely affect the registrant's ability to
record, process, summarize and report financial data and have
identified for the registrant's auditors any material weaknesses in
internal controls; and
(b) any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal
controls; and
6. The registrant's other certifying officers and I have indicated in this
annual report whether or not there were significant changes in internal
controls or in other factors that could significantly affect internal
controls subsequent to the date of our most recent evaluation, including
any corrective actions with regard to significant deficiencies and material
weaknesses.
/s/ John A. Catsimatidis
Date: April 7, 2003
Title: Chief Executive Officer
ANNUAL AND QUARTERLY CERTIFICATIONS
PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Gary Pokrassa, certify that:
1. I have reviewed this annual report on Form 10-K/A of Gristede's Foods, Inc.
2. Based on my knowledge, this annual report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered by
this annual report;
3. Based on my knowledge, the financial statements, and other financial
information included in this annual report, fairly present in all material
respects the financial condition, results of operations and cash flows of
the registrant as of, and for, the periods presented in this annual report;
4. The registrant's other certifying officers and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined
in Exchange Act Rules 13a-14 and 15d-14) for the registrant and have:
(a) designed such disclosure controls and procedures to ensure that
material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this annual report
is being prepared;
(b) evaluated the effectiveness of the registrant's disclosure controls
and procedures as of a date within 90 days prior to the filing date of
this annual report (the "Evaluation Date"); and
(c) presented in this annual report our conclusions about the
effectiveness of the disclosure controls and procedures based on our
evaluation as of the Evaluation Date;
5. The registrant's other certifying officers and I have disclosed, based on
our most recent evaluation, to the registrant's auditors and the audit
committee of registrant's board of directors (or persons performing the
equivalent function):
(a) all significant deficiencies in the design or operation of internal
controls which could adversely affect the registrant's ability to
record, process, summarize and report financial data and have
identified for the registrant's auditors any material weaknesses in
internal controls; and
(b) any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal
controls; and
6. The registrant's other certifying officers and I have indicated in this
annual report whether or not there were significant changes in internal
controls or in other factors that could significantly affect internal
controls subsequent to the date of our most recent evaluation, including
any corrective actions with regard to significant deficiencies and material
weaknesses.
/s/ Gary Pokrassa
Date: April 7, 2003
Title: Chief Financial Officer