Exhibit 99.2
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "AGREEMENT") is made and entered into as
of October 23, 2003 by and between The Bon-Ton Stores, Inc., a Pennsylvania
corporation (the "COMPANY"), and Xxx Xxxxxxxxxx ("PURCHASER").
W I T N E S S E T H:
WHEREAS, in connection with the acquisition by the Company, through a
wholly-owned subsidiary of the Company, of all the issued and outstanding
capital stock of the Xxxxx-Xxxxxxx Stores Corp. (the "TRANSACTION"), it is
necessary and desirable for the Company to raise equity capital through the
issuance for cash of shares of the Company's common stock, $0.01 par value per
share (the "COMMON STOCK"); and
WHEREAS, Purchaser desires to purchase such number of shares of Common
Stock from the Company sufficient to satisfy the Company's equity capital
requirements in connection with the Transaction.
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in this
Agreement, intending to be legally bound, the parties to this Agreement hereby
agree as follows:
1. Purchase and Sale of Stock. Subject to the terms and
conditions of this Agreement, Purchaser agrees to purchase from the Company, and
the Company agrees to sell and issue to Purchaser, 476,890 shares of Common
Stock (the "SHARES") at a purchase price of $13.63 per Share, or $6,500,000 in
the aggregate.
2. Closing, Delivery and Payment. The closing of the purchase and
sale of the Shares (the "CLOSING") shall take place on the date hereof at the
offices of the Company, 0000 Xxxx Xxxxxx Xxxxxx, Xxxx, Xxxxxxxxxxxx 00000, or
such other time and place as the Company and Purchaser shall mutually agree. At
the Closing, subject to the terms and conditions hereof, the Company shall
deliver to Purchaser a certificate or certificates representing the Shares being
purchased by such Purchaser, or such other evidence of such issuance and
delivery reasonably satisfactory to Purchaser, against delivery to the Company
by Purchaser of a wire transfer of immediately available funds to an account
maintained and designated by or for the account of the Company in the amount of
the aggregate purchase price therefor.
3. Representations and Warranties of the Company. The Company
hereby represents and warrants to Purchaser that:
(a) Organization, Good Standing, Licensing and
Qualification. The Company is a corporation duly organized and subsisting under
the laws of the Commonwealth of Pennsylvania and has all requisite corporate
power and authority to own its properties and to carry on its business as now
conducted and as proposed to be conducted. The Company is duly licensed or
qualified to transact business and is in good standing in each jurisdiction
wherein the character of the property owned or leased, or the nature of the
activities conducted, make such
licensing or qualification necessary, except where the failure to be so licensed
or qualified would not have a material adverse effect on its business or
properties.
(b) Authorization. All corporate actions on the part of
the Company, its officers, directors and shareholders necessary for the
authorization, execution and delivery of this Agreement, and the performance of
all obligations of the Company hereunder have been taken, and this Agreement
constitutes the valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms except as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and
other laws of general application affecting enforcement of creditors rights
generally and as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies.
(c) Compliance with Charter Documents. The Company is not
in violation of any provision of its Articles of Incorporation or Bylaws
(collectively, the "CHARTER DOCUMENTS"). The execution, delivery, and
performance of and compliance with this Agreement and the issuance and sale of
the Shares pursuant hereto will not be in conflict with or constitute, with or
without the passage of time or the giving of notice, a default under any Charter
Document.
(d) Validity of Stock. The Shares to be purchased and
sold pursuant to this Agreement, when issued, sold and delivered in accordance
with the terms hereof for the consideration expressed herein, will be duly
authorized, validly issued, fully paid and nonassessable and free of
restrictions on transfer other than restrictions on transfer contained in
applicable state and federal securities laws.
(e) Securities Law Compliance. Subject in part to the
truth and accuracy of Purchaser's representations set forth in this Agreement,
the offer, sale, and issuance of the Shares as contemplated by this Agreement
are exempt from the registration requirements of the Securities Act of 1933, as
amended (the "ACT"), and from the requirements of any applicable state
securities or "blue sky" laws, and neither the Company nor any authorized agent
acting on its behalf will take any action hereafter that would cause the loss of
such exemptions.
4. Representations and Warranties of Purchaser. Purchaser hereby
represents and warrants that:
(a) Authorization. This Agreement constitutes the valid
and legally binding obligation of Purchaser, enforceable in accordance with its
terms, except as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance, and other laws of general application
affecting enforcement of creditors rights generally, as limited by laws relating
to the availability of specific performance, injunctive relief, or other
equitable remedies.
(b) Investment Representation. Purchaser is aware that
the Shares to be purchased hereunder have not been registered under the Act or
qualified under any other state securities or "blue sky" laws. Such Shares are
being acquired by him for investment purposes only and not for sale or with a
view to distribution of all or any part of such Shares.
(c) Restricted Securities. Purchaser understands that the
Shares being purchased hereunder are characterized as restricted securities
under the federal securities laws
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inasmuch as they are being acquired from the Company in a transaction not
involving a public offering, and that under such laws and applicable regulations
such Shares may be resold without registration under the Act only in certain
limited circumstances and that otherwise such Shares must be held indefinitely.
In this connection, Purchaser represents that he is familiar with Rule 144 under
the Act, as presently in effect, and the conditions that must be met in order
for that Rule to be available for resale of restricted securities, and
understands the resale limitations imposed by the Act.
(d) Accredited Investor. Purchaser is an accredited
investor as such term is defined in Rule 501(a) of Regulation D under the
Securities Act.
5. Limited Right of Rescission. The parties hereby acknowledge
and agree that Purchaser is purchasing the Shares hereunder in support of the
Company's ability to complete the Transaction. In the event that as of 5:30 PM
New York City time on October 31, 2003, the Company's applicable subsidiaries
and the other parties thereto shall not have executed and delivered the Second
Amended and Restated Credit Agreement (the "Credit Agreement") among The Bon-Ton
Department Stores, Inc. ("BTDS") and The Bon-Ton Stores of Lancaster, Inc.
("BTSL"), as Borrowers, the other Credit Parties signatory thereto, the Lenders
signatory thereto and General Electric Capital Corporation ("GECC"), as
Administrative Agent and Lender, and GECC Capital Markets Group, Inc., as
Syndication Agent, which Credit Agreement contains terms and conditions
substantially as provided in that certain commitment letter dated as of August
29, 2003 among the Company, BTDS, BTSL and GECC, then either of the Company or
Purchaser, in its respective sole discretion, shall have the right to rescind
this transaction effective immediately at such time upon delivery of written
notice of an election to rescind at the executive offices of the Company, and,
upon delivery of such notice, Purchaser shall deliver the certificate(s)
evidencing the Shares (or such other evidence of delivery, together with such
documents evidencing transfer, as are reasonably acceptable to the Company) to
the Company, and the Company shall immediately deliver to Purchaser by wire
transfer of immediately available funds, at an account designated by Purchaser,
an amount equal to the aggregate purchase price for the Shares. The parties
hereby agree that in the event of such rescission, to the extent legally
possible, the issuance and sale of the Shares shall be deemed void ab initio and
not to have occurred.
6. Restrictions on the Transfer of Securities.
(a) Corporate Securities Law. The Shares may be
transferred only in compliance with the provisions of the Act and state
securities laws with respect to the transfer of any such securities. Any
certificate representing the Shares shall bear the legend substantially in the
form set forth below until such time as the conditions of such legend have been
met. The Company shall, promptly upon the request of any holder of a certificate
bearing the legend set forth below and the surrender of such certificate, issue
a new stock certificate in the name of a transferee provided that there has been
compliance with the provisions of applicable federal and state securities law.
All certificates representing Shares shall be marked with the following legends
for so long as such legends are applicable:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS
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AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD OR
TRANSFERRED WITHOUT COMPLIANCE WITH THE REGISTRATION OR QUALIFICATION
PROVISIONS OF APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR
APPLICABLE EXEMPTIONS THEREFROM. THE COMPANY SHALL BE ENTITLED TO
REQUIRE AN OPINION OF COUNSEL SATISFACTORY TO IT WITH RESPECT TO
COMPLIANCE WITH THE ABOVE LAWS.
(b) Additional Legends. The Company may also impose any
additional legend required by its Bylaws or any applicable state securities laws
and shall be entitled to issue stop transfer notices on its stock books with
respect to any Shares, until the conditions set forth in the applicable legends
have been met.
7. Miscellaneous.
(a) Survival of Warranties. The warranties,
representations and covenants of the Company and of Purchaser contained in or
made pursuant to this Agreement shall survive the Closing.
(b) Successors and Assigns. The terms and conditions of
this Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
herein.
(c) Governing Law. This Agreement shall be governed by
and construed under the laws of the Commonwealth of Pennsylvania, without regard
to the conflicts of law provisions thereof.
(d) Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. Each party hereto
will receive by delivery or facsimile transmission a duplicate original of this
Agreement executed by each party, and each party agrees that the delivery of
this Agreement by facsimile transmission will be deemed to be an original of the
Agreement so transmitted.
(e) Amendments and Waivers. Any provision of this
Agreement may be amended and the observance of any provision of this Agreement
may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of the Company
and Purchaser.
(f) Entire Agreement. This Agreement constitutes the
entire agreement of the parties with respect to the subject matter hereof and
thereof, and supercedes all prior agreements and understandings of the parties,
oral and written, with respect to such subject matter.
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IN WITNESS WHEREOF, the parties have executed this Stock Purchase
Agreement as of the date first above written.
THE BON-TON STORES, INC.
By: /s/ Xxxxx X. Xxxxxxxxxx
------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice Chairman
PURCHASER:
/s/ Xxx Xxxxxxxxxx
-------------------
Name: Xxx Xxxxxxxxxx
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