EXHIBIT 10.1
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AGREEMENT is made effective November 25, 2003 by and between THE
BON-TON STORES, INC., a Pennsylvania corporation (the "Company"), and XXXXX
XXXXXXX ("Employee").
W I T N E S S E T H:
WHEREAS, The Xxxxx-Xxxxxxx Stores Corp. ("Xxxxx-Xxxxxxx") and the
Employee are parties to an Employment Agreement dated January 23, 2002 (the
"Prior Employment Agreement"); and
WHEREAS, the Company has acquired Xxxxx-Xxxxxxx; and
WHEREAS, the Company deems it critical to retain Employee in a senior
executive position and to provide him with financial incentives to help manage
the integration between the Company and Xxxxx-Xxxxxxx, requiring an
extraordinary commitment of time and travel.
NOW THEREFORE, in consideration of the mutual promises and covenants
contained herein and intending to be legally bound hereby, the Company and
Employee agree as follows:
1. Position and Responsibilities.
(a) The Company hereby employs Employee and Employee
hereby accepts employment by the Company as President and Chief Executive
Officer of Xxxxx-Xxxxxxx and Vice Chairman of the Company. Employee shall also
be a member of the Board of Xxxxx-Xxxxxxx during the term of this Agreement.
Employee shall be jointly responsible with Xxx Xxxxxxxxxx, the Chairman and
Chief Executive Officer of the Company and the
Company's President and other Vice Chairman, for directing and managing the
integration between the Company and Xxxxx-Xxxxxxx and shall have all the duties
and responsibilities normally attendant to the position of President and Chief
Executive Officer of Elder Xxxxxxx and Vice Chairman of the Company. Employee
shall perform such other executive duties as may from time to time reasonably be
assigned to Employee by the Chairman of the Board of the Company and shall
report directly to the Chairman of the Board of the Company.
(b) Throughout the term of this Agreement, Employee shall
devote his entire working time, energy, attention, skill and best efforts to the
affairs of the Company and to the performance of his duties hereunder in a
manner that will faithfully and diligently further the business and interests of
the Company. During the term of this Agreement, Employee may not, directly or
indirectly, do any work for or on behalf of a competitor or any other for-profit
company or non-profit organization while employed by the Company, without the
Company's written consent. However, nothing herein contained shall be deemed to
prevent or limit the right of Employee to invest any of his personal funds in
less than one percent of the outstanding capital stock or other securities of
any entity that is regularly traded on any national securities exchange or to
invest up to $500,000 in a private company. Notwithstanding the foregoing,
Employee may continue to serve on the Board of Directors of the Dayton Economic
Development Commission provided that such activities do not significantly
interfere with Employee's duties under this Agreement. Approval of other board
memberships and participation in lectures and teaching activities will be at the
discretion of the Chairman of the Board; provided, however, such approval will
not be unreasonably withheld.
(c) Employee shall not obtain goods or services or
otherwise deal on behalf of the Company with any business or entity in which
Employee or a member of his family has a
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financial interest or from which Employee or a member of his immediate family
may derive a financial benefit as a result of such transaction, except that this
prohibition shall not apply to any public company in which Employee or members
of his family own in the aggregate less than one percent of the outstanding
stock.
2. Term of Agreement. This Agreement, and Employee's employment
hereunder, shall commence effective upon execution by both parties, and shall
continue through and terminate on April 15, 2004 ("the Term"), unless sooner
terminated in accordance with Section 8 below.
3. Place of Performance. Employee shall continue to be based at
the executive offices of Xxxxx-Xxxxxxx in Dayton, Ohio, but his position will
require substantial travel to the Company's executive offices currently located
in York, Pennsylvania, the cost of which will be reimbursed by the Company in
accordance with Section 6.
4. Compensation.
(a) Salary and Incentive Compensation. Employee shall
continue to receive the Annual Base Salary and Annual Incentive Compensation
provided by Sections 4.1(a) and 4.1(c) of the Prior Employment Agreement,
payable in accordance with the Company's regular executive payroll practices,
provided that with respect to the Xxxxx-Xxxxxxx 2003 Performance Incentive Plan
(the "2003 Incentive Plan") (i) any payment due Executive under the 2003
Incentive Plan shall be payable no later than April 15, 2004, and (ii) "Net
Operating Profit" for purposes of the 2003 Incentive Plan as applicable to
Employee shall be determined on a consistent basis with past practices of
Xxxxx-Xxxxxxx in administering its incentive compensation plans, and will be
normalized to adjust for and exclude any negative impact from
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the sale process for Xxxxx-Xxxxxxx, Xxxxx-Xxxxxxx'x acquisition by the Company
and the integration of Xxxxx-Xxxxxxx and the Company, and related costs and
expenses. Employee's rights to Long-Term Incentive Compensation as to stock or
options granted prior to the Effective Date pursuant to the Prior Employment
Agreement shall not be affected by this Agreement.
(b) Special Integration Services Bonus. In consideration
for Employee's undertaking of the additional duties and responsibilities of
directing and managing the integration between the Company and Xxxxx-Xxxxxxx,
which the parties acknowledge will require an extraordinary commitment of time
and travel, for which Employee would not otherwise be compensated, Employee will
receive an additional special integration services bonus of $612,000 payable on
April 15, 2004, provided that Employee does not resign without Good Reason or is
not discharged for Cause (as such terms are defined herein) prior to April 15,
2004. In order for Employee to receive this bonus, Xxxxx-Xxxxxxx must achieve at
least a $15 million Net Operating Profit for its fiscal year ending on or about
January 31, 2004, determined on a consistent basis with past practices of
Xxxxx-Xxxxxxx, and normalized to adjust for and exclude any negative impact from
the sale process for Xxxxx-Xxxxxxx, Xxxxx-Xxxxxxx'x acquisition by the Company,
and the integration of Xxxxx-Xxxxxxx and the Company and related costs and
expenses. The bonus provided for by this paragraph will not be charged to
Xxxxx-Xxxxxxx for purposes of the Net Operating Profit target.
5. Employee Benefits.
(a) Medical Insurance. Employee and his eligible
dependents shall continue to be eligible to participate in the Company's group
medical plans applicable to employees of
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Xxxxx-Xxxxxxx in accordance with the terms of such plans and subject to the
restrictions and limitations contained in the plans or applicable insurance or
agreements.
(b) Other Benefits. Employee shall be eligible to
participate in the Company's profit sharing plan, discount program, vacation
plan, long-term disability plan and employee benefit programs generally made
available to other employees of Xxxxx-Xxxxxxx, subject to their respective
generally applicable eligibility requirements, terms, conditions and
restrictions; provided however, that payments under this Agreement shall be in
lieu of any severance benefits otherwise provided by the Company. However,
nothing in this Agreement shall preclude the Company from amending or
terminating any such insurance, benefit, program or plan so long as the
amendment or termination is applicable to Xxxxx-Xxxxxxx employees generally. The
Company will also pay the premium to provide Employee with $600,000 of
supplemental term life insurance in addition to the life insurance currently
made available to Employee, provided Employee is insurable at standard
non-smoker rates. Moreover, the Company's obligations under this provision shall
not apply to any insurance, benefit, program or plan made available on an
individual basis to one or more select executive employees by contract if such
insurance, benefit, program or plan is not made available to all executive
employees. With respect to Employee's participation in the Company's vacation
plan, Employee shall be eligible for four weeks vacation per calendar year,
which vacation entitlement shall be pro-rated in any calendar year in which the
Employee does not work the entire calendar year. Employee shall continue to have
use of a cell phone, leased automobile and computer equipment hookup as provided
in Section 4.3 of the Prior Employment Agreement and the Company shall also
maintain, at the Company's expense, Employee's current memberships in airline
preferred traveler airport clubs.
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6. Business Expenses. The Company shall pay or reimburse Employee
for all reasonable entertainment and other expenses incurred by Employee in
connection with the performance of Employee's duties under this Agreement in a
manner commensurate with Employee's position and level of responsibility with
the Company and Xxxxx-Xxxxxxx (including his travel, lodging and other related
costs incurred in traveling from Dayton to York) upon receipt of vouchers
therefor and in accordance with the Company's regular reimbursement procedures
and practices in effect from time to time.
7. Death and Disability. Sections 5.1 and 5.2 of the Prior
Employment Agreement shall remain in effect during the Term of this Agreement.
8. Termination of Employment. Notwithstanding the Term specified
in Section 2, Employee's employment may be terminated prior to the expiration of
the Term in either of the following circumstances:
(a) Resignation for Good Reason. Employee may resign for
"Good Reason," defined below, upon 30 days' written notice by Employee to the
Company. The Company may waive Employee's obligation to work during this 30 day
notice period and terminate his employment immediately, but if the Company takes
this action in the absence of agreement by Employee, Employee shall receive the
salary which otherwise would be due through the end of the notice period. For
purposes of this Agreement, "Good Reason" shall mean any of the following
violations of this Agreement by the Company: causing Employee to cease to be
Vice Chairman of the Company and President and Chief Executive Officer of
Xxxxx-Xxxxxxx with commensurate duties and responsibilities; causing Employee to
cease reporting to the Chairman of the Board of the Company; any reduction in
Employee's base salary or opportunity or ability
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to earn incentive compensation under the 2003 Incentive Plan or opportunity or
ability to earn the Special Integration Services Bonus provided for in Section
4(b) above or any breach of any material provision of this Agreement. Any breach
of any material provision of the Agreement shall not constitute "Good Reason"
unless the Employee provides the Company with written notice detailing the
matters he asserts to be "Good Reason" which the Company does not cure within
thirty (30) days of receiving the notice.
(b) Discharge for Cause. Company may discharge Employee
at any time for "Cause" in accordance with Section 5.3 of the Prior Agreement
which section shall remain in effect during the Term of this Agreement, provided
that the references in said Section 5.3 to the "Board" shall be deemed to be
references to the Board of the Company and the references in clause (b)(ii) of
said Section 5.3 to Sections "9.1, 9.2 or 9.3" of the Prior Agreement shall be
deemed to be references to Section 11 of this Agreement.
9. Payments Upon Termination or Expiration of the Term.
(a) Discharge Without Cause or Resignation for Good
Reason. If Employee is discharged without Cause prior to April 15, 2004 or
resigns for Good Reason:
(i) Employee shall continue to receive his base
salary for the remaining term of the Agreement in the same manner as in effect
on the Effective Date, and promptly receive all accrued but unused vacation pay.
(ii) If not previously paid, Employee will
receive his incentive compensation under the 2003 Incentive Plan for the
Company's fiscal year ending on or about January 31, 2004 in the amount which
would have been earned by the Employee if not so
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terminated prior to April 15, 2004. This incentive compensation will be promptly
paid at such time as other employees receive their incentive compensation under
the 2003 Incentive Plan.
(iii) If not previously paid, Employee will
receive the payment provided by Section 4(b) of this Agreement within two (2)
business days of the date of termination.
(iv) The Employee will receive in a lump sum
within seven (7) days after the release referred to in Section 9(b) below
becomes effective, a termination payment in the amount of $1,800,000.
(b) Release. The Employee's right to the payments set
forth in Section 9(a) above shall be contingent upon execution by the Employee
at or about the time of termination of his employment of a general release of
claims (including without limitation contractual, common law and statutory
claims) in favor of the Company and its officers, directors, executives and
agents substantially similar in substance to the release attached as Exhibit
"A," which release he does not revoke; provided that Employee's obligation to
provide this release is contingent upon his concurrent receipt from Employer of
a general release of claims against Employee (including, without limitation
contractual, common law and statutory claims), substantially similar in
substance to the release attached as Exhibit "B"; in the event Employer does not
provide such a release, Employee shall be entitled to the payments provided
under this Section 9 without executing the release otherwise required of him
hereunder.
(c) No Duty to Mitigate. Employee shall have no duty to
mitigate his damages and the amounts due Employee upon discharge without Cause
or resignation for Good Reason shall not be reduced by any payments received
from other sources.
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(d) Resignation/Discharge for Cause. If Employee is
discharged for Cause or resigns without Good Reason, Employee will be entitled
to promptly receive his base salary for any days worked through the date of
termination and accrued but unpaid vacation, and such other benefits then
available to Employee under any benefit plan or policy maintained by the Company
maintained for Employee's benefit or in which Employee participated.
(e) Expiration of Term. Upon expiration of the Term on
April 15, 2004, Employee shall receive (in addition to all previously earned
compensation and accrued but unused vacation pay), the bonus payment provided
under Section 4(b), which shall be payable on April 15, 2004 and a termination
payment in the amount of $1,800,000. This termination payment shall be payable
in a lump sum within seven (7) days after the release referred to in Section
9(b) above becomes effective.
10. Company Property. All advertising, sales, manufacturers' and
other materials or articles or information, including without limitation data
processing reports, customer sales analyses, invoices, price lists or
information or any other materials or data of any kind furnished to Employee by
the Company or developed by Employee on behalf of the Company or at the
Company's direction or for the Company's use or otherwise in connection with
Employee's employment with the Company, are and shall remain the sole and
confidential property of the Company.
11. Confidential Information.
(a) During his employment with the Company and at all
times thereafter, and except as required by law, Employee shall not use for his
personal benefit, or disclose, communicate or divulge to, or use for the direct
or indirect benefit of, any person, firm,
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association or company other than the Company, any confidential information of
the Company which Employee acquires in the course of his employment which is not
otherwise lawfully known by and readily available to the general public. This
confidential information includes, but is not limited to: any information
regarding the business, marketing, legal or accounting methods, policies, plans,
procedures, strategies or techniques; research or development projects or
results; trade secrets or other knowledge or processes of or developed by the
Company; names and addresses of employees, suppliers or customers. Employee
confirms that such information is confidential and constitutes the exclusive
property of the Company.
(b) The provisions of subparagraph (a) shall survive the
cessation of Employee's employment for any reason, as well as the expiration of
this Agreement at the end of the Term (or any extension of the Term) or at any
time prior thereto.
(c) Employee acknowledges that the restrictions contained
in this Section 10, in view of the nature of the business in which the Company
is engaged and the Employee's position with the Company, are reasonable and
necessary to protect the legitimate interests of the Company, and that any
violation of those restrictions would result in irreparable injury to the
Company. Employee therefore agrees that, in the event of his violation of any of
those restrictions, the Company shall be entitled to obtain from any court of
competent jurisdiction preliminary and permanent injunctive relief against
Employee and Employee hereby stipulates to the entering of such injunctive
relief prohibiting Employee from engaging in such breach.
12. Taxes. Except as set forth in Section 13 below, Employee
acknowledges that he is responsible for paying any and all federal, state and
local income taxes assessed with respect to any money, benefits or other
consideration received from the Company. The Company may
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withhold from amounts otherwise payable to the Employee pursuant to this
Agreement and pay over to the Internal Revenue Service ("IRS") or any other
taxing authority, for the benefit of the Employee, any taxes to the extent
required by applicable statutes, rulings or regulations.
13. Indemnification
(a) The Company agrees that it shall take the position,
for purposes of information reporting and withholding, that no amount paid under
this Agreement constitutes an "excess parachute payment" (as that term is
defined in Section 280G(b) of the Internal Revenue Code of 1986, as amended (the
"Code")) to Employee; except to the extent required by applicable law in the
event that Employee is either discharged without Cause or resigns for Good
Reason prior to the end of the Term of this Agreement.
(b) Anything in this Agreement to the contrary
notwithstanding, and except as set forth below, in the event that any payment
made to Employee pursuant to this Agreement (other than pursuant to this Section
13) (an "Agreement Payment" or, collectively, the "Agreement Payments") is
determined to be, or the IRS or any other taxing authority asserts that any
Agreement Payment constitutes, an excess parachute payment subject to the excise
tax imposed by Section 4999 of the Code or any successor provision thereto, or
to any similar tax imposed by state or local law, or to any interest or
penalties with respect to such tax (collectively, the "Excise Tax"), and the IRS
prevails after the Company exhausts its remedies pursuant to Section 13(c) or
the Employee acquiesces to the assessment of such Excise Tax with the written
consent of the Company, then Employee shall be entitled to receive an additional
payment from the Company (the "Gross-Up Payment") in an amount such that, after
payment by Employee of all taxes (including any interest or penalties imposed
with respect to such taxes),
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including any income or Excise Tax imposed on the Gross-Up Payment, Employee
will retain a portion of the Gross-Up Payment equal in amount to the Excise Tax
imposed upon the Agreement Payments. The intent of this Section 13(a) is to
provide additional payments to Employee in the form of the Gross-Up Payment, so
that the net, after-tax benefit to the Employee from all payments made pursuant
to this Agreement (including the Gross-Up Payment made pursuant to this Section
13) equals the amount the Employee would have received (on an after-tax basis)
had no Excise Tax been applicable to any payments made pursuant to this
Agreement. The amount of the Gross-Up Payment required to be paid pursuant to
this Section 13 shall be determined by a nationally recognized certified public
accounting firm designated by the Employee and the Company by mutual agreement
(the "Accounting Firm"). All fees and expenses of the Accounting Firm shall be
borne solely by the Company. The Gross-Up Payment, as determined in accordance
with this Section 13, shall be paid by the Company to the Employee within five
days of the receipt of the Accounting Firm's determination. Any determination by
the Accounting Firm shall be binding upon the Company and the Employee.
(c) The Employee shall notify the Company in writing of
any claim by the IRS or any other taxing authority that, if successful, would
require the payment by the Company of the Gross-Up Payment. Such notification
shall be given as soon as practicable, but no later than ten (10) business days
after the Employee is informed in writing of such claim. The Employee shall
apprise the Company of the nature of such claim and the date on which such claim
is requested to be paid. The Employee shall not pay such claim prior to the
expiration of the 30-day period following the date on which the Employee gives
such notice to the Company (or such shorter period ending on the date that any
payment of taxes with respect to such claim is due). If the Company notifies the
Employee in writing prior to the expiration of such period that
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the Company desires to contest such claim, the Employee shall cooperate fully
with the Company in any such contest, including any administrative or court
proceedings in which the IRS or a state or local tax authority asserts a claim
for Excise Tax or the Employee sues for a refund, and the Employee agrees not to
acquiesce in any assessment of the Excise Tax by the IRS or any other tax
authority without the written consent of the Company. The Company shall bear and
pay directly all costs and expenses (including additional interest and
penalties) incurred in connection with any such contest or claim for refund, and
shall indemnify and hold the Employee harmless, on an after-tax basis, for any
Excise Tax or income tax (including interest and penalties) imposed as a result
of such representation and payment of costs and expenses. If the Company directs
the Employee to pay such claim and xxx for a refund, the Company shall advance
the amount of such payment to the Employee, on an interest-free basis, and shall
indemnify and hold the Employee harmless, on an after-tax basis, from any Excise
Tax or income tax (including interest or penalties) imposed with respect to such
advance or with respect to any imputed income in connection with such advance.
The Company shall have the right to control any contest under this Section
13(b); provided however, that such control shall be limited to issues with
respect to which the Gross-Up Payment would be payable hereunder, and the
Employee shall be entitled to settle or contest, as the case may be, any other
issue raised by the IRS or any other taxing authority; and provided further,
that any extension of the statute of limitations relating to payment of taxes
for the taxable year of the Employee with respect to which an amount contested
pursuant to this Section 13(b) is claimed to be due shall be limited solely to
such contested amount.
(d) If, after the receipt by the Employee of an amount
advanced by the Company pursuant to Section 13(b), the Employee becomes entitled
to receive any refund with
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respect to such claim, the Employee shall (subject to the Company's compliance
with the requirements of Section 13(b)) promptly pay to the Company the amount
of such refund (together with any interest paid or credited thereon after taxes
applicable thereto). If, after the receipt by the Employee of an amount advanced
by the Company pursuant to Section 13(b), a determination is made that the
Employee shall not be entitled to any refund with respect to such claim and the
Company does not notify the Employee in writing of its intent to contest such
denial of refund prior to the expiration of 30 days after such determination,
then such advance shall be forgiven and shall not be required to be repaid and
the amount of such advance shall offset, to the extent thereof, the amount of
Gross-Up Payment required to be paid.
14. Legal Fees, Costs and Expenses. The Company agrees to pay
Employee's reasonable attorney's fees, costs and expenses in connection with the
negotiation of this Agreement. In the event of any litigation brought by
Employee to enforce any provision of this Agreement, he shall be entitled to
recover his reasonable attorney's fees, costs and expenses incurred to enforce
the Agreement if he prevails in the litigation. Any payment due to Employee
under this Agreement which was not timely made by the Company shall include an
award of interest at the rate of 10% per annum.
15. Entire Understanding. This Agreement contains the entire
understanding between the Company and Employee with respect to the subject
matter hereof and supersedes all prior and contemporary agreements and
understandings, inducements or conditions, express or implied, written or oral,
between the Company or Xxxxx-Xxxxxxx and Employee except as herein contained,
including without limitation the Prior Employment Agreement, except to the
extent that its provisions are explicitly incorporated by reference herein. The
express terms hereof
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control and supersede any course of performance and/or usage of the trade
inconsistent with any of the terms hereof.
16. Modifications. This Agreement may not be modified orally but
only by written agreement signed by Employee and the Company's Chief Executive
Officer or such other person as the Board may designate specifically for this
purpose.
17. Provisions Separable. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
18. Consolidation, Merger or Sale of Assets. Nothing in this
Agreement shall preclude the Company from consolidating or merging into or with,
or transferring all or substantially all of its assets to, another entity which
expressly assumes, in a writing reasonably acceptable to Employee, this
Agreement and all obligations and undertakings of the Company hereunder. Under
such a consolidation, merger or transfer of assets and assumption, the term "the
Company" as used herein, shall mean such other entity and this Agreement shall
continue in full force and effect.
19. Notices. All notices, requests, demands and other
communications required or permitted under this Agreement shall be in writing
and shall be deemed to have been duly given, made and received when delivered
(personally, by courier service such as Federal Express, or by messenger) or
when deposited in the United States mails, registered or certified mail, postage
pre paid, return receipt requested, addressed as set forth below:
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(a) If to the Company:
The Bon-Ton Stores, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxx, XX 00000
Attention: Chief Executive Officer
with a copy to:
Xxxxx X. Xxxxxx, Esquire
Wolf, Block, Xxxxxx and Xxxxx-Xxxxx LLP
0000 Xxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxxxx, XX 00000-0000
(b) If to Employee:
Xxxxx Xxxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
with a copy to
Xxxxxxx Xxxxx, Esquire
Xxxxxx & Whitney LLP
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
In addition, notice by mail shall be by air mail if posted outside of the
continental United States. Any party may alter the address to which
communications or copies are to be sent by giving notice of such change of
address in conformity with the provisions of this paragraph for the giving of
notice.
20. No Attachment. Except as required by law, no right to receive
payments under this Agreement shall be subject to anticipation, commutation,
alienation, sale, assignment, encumbrance, charge, pledge, or hypothecation or
to execution, attachment, levy or similar
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process or assignment by operation of law, and any attempt, voluntary or
involuntary, to effect any such action shall be null, void and of no effect.
21. Binding Agreement. This Agreement shall be binding upon, and
shall inure to the benefit of the Company and its successors, representatives,
and assigns and shall be binding upon Employee, his heirs, executors and legal
representatives.
22. No Assignment, Employee acknowledges that the services to be
rendered by him are unique and personal. Accordingly, Employee may not assign or
delegate any of his rights or obligations hereunder, except that he may assign
certain rights hereunder if agreed to in writing by the Chief Executive Officer.
This Agreement is assignable by the Company only in accordance with Section 18
above.
23. Indulgences. Neither the failure nor any delay on the part of
either party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence. No waiver shall be effective unless it is
in writing and is signed by the party asserted to have granted such waiver.
24. Paragraph Headings. The paragraph headings in this Agreement
are for convenience only; they form no part of this Agreement and shall not
affect its interpretation.
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25. Controlling Law. This Agreement and all questions relating to
its validity, interpretation, performance and enforcement (including, without
limitation, provisions concerning limitations of actions), shall be governed by
and construed in accordance with the laws of the Commonwealth of Pennsylvania,
notwithstanding any conflict of laws doctrines of such state or any other
jurisdiction to the contrary, and without the aid of any canon, custom or rule
of law requiring construction against the draftsman.
26. Chief Executive Officer. In the absence of the Chief Executive
Officer of the Company, the decisions of the Chief Executive Officer may be made
by such other person as designated by the Company's Board.
27. Execution in Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of all of the parties hereto.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have duly executed and delivered, in Pennsylvania, this Agreement as of the date
first above written.
THE BON-TON STORES, INC.
By: /s/ M. Xxxxxx Xxxxxxxxxx
M. Xxxxxx Xxxxxxxxxx
Chief Executive Officer
XXXXX XXXXXXX
/s/ Xxxxx Xxxxxxx
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EXHIBIT "A"
SEPARATION AGREEMENT AND GENERAL RELEASE
THIS Separation Agreement and General Release ("Agreement") is by and
between The Bon-Ton Stores, Inc. (the "Company" or "Bon-Ton") and Xxxxx Xxxxxxx
("Employee").
WITNESSETH:
WHEREAS, Employee was employed by the Company under an Employment
Agreement entered into in November, 2003 (the "Employment Agreement");
WHEREAS, the Employment Agreement provides for certain payments and
benefits conditioned upon, inter alia, the execution of a release by Employee;
WHEREAS, Employee's employment with the Company has ceased;
NOW, THEREFORE, the parties agree as follows:
1. The foregoing recitals are incorporated herein as if set forth
at length.
2. In exchange for Employee's promises and obligations under this
Agreement, the Company agrees provide to Employee with payments and benefits
under paragraph 9 of the Employment Agreement.
3. Employee, intending to be legally bound, releases and forever
discharges the Company, its direct and indirect parents, subsidiaries and
affiliated companies, their past, present and future officers, directors,
attorneys, employees, shareholders and agents and their respective successors
and assigns (collectively "Releasees"), jointly and severally, from any and all
actions, charges, causes of action or claims of any kind (collectively
"Claims"), known or unknown, which he, his heirs, agents, successors or assigns
may have against Releasees arising out of any matter, omission, occurrence or
event existing or occurring prior to the execution hereof, including, without
limitation: any claims relating to or arising out of his employment with and/or
termination of employment with the Company or any of Releasees; any claims for
unpaid or
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withheld wages, severance pay, benefits, bonuses and/or other compensation of
any kind including but not limited to any claim under the Employee Retirement
Income Security Act ("ERISA") or otherwise for payments or benefits under any
severance pay plan; any claims for attorneys' fees, costs or expenses; any
claims of discrimination and/or harassment based on age, sex, race, religion,
color, creed, handicap, disability, citizenship, national origin or any other
factor prohibited by Federal, State or Local law (such as the Age Discrimination
in Employment Act, Title VII of the Civil Rights Act of 1964, the Americans with
Disability Act and state or local laws against discrimination including but not
limited to the Pennsylvania Human Relations Act ) or any claim for retaliation
under said statutes; and/or any common law claims, now existing or hereafter
recognized, such as breach of contract, libel, slander, fraud, promissory
estoppel, breach of implied covenant of good faith and fair dealing,
misrepresentation or wrongful discharge. Employee specifically waives any claims
for reinstatement and employment with the Company and agrees not to apply for
reemployment. It is specifically agreed that this release does not apply to
claims: (a) to recover any payments or benefits due under Section 9 of the
Employment Agreement or this Separation Agreement and General Release; (b) for
indemnity under the Company's by-laws or any other contract; (c) for insurance
coverage under any applicable directors and officers liability policy; and (d)
for any vested benefit under any Company or Xxxxx-Xxxxxxx benefit plan.
4. Employee agrees that he is not and shall not become entitled
to any payment from any Releasee, other than the payments from the Company under
Section 9 of the Employment Agreement and paragraph 2 of this Agreement and
payments (if applicable) of reasonable attorneys fees, costs and expenses and
interest under Section 14 of the Employment Agreement. Except as provided in the
Employment Agreement and paragraph 2 of the Agreement, Employee
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specifically waives any rights he may have to participate in any Company or
other Releasee bonus plans or arrangements of any kind.
5. Employee agrees and admits that no representation of fact or
opinion has been made by the Company or any representative thereof, to induce
this Agreement and that this Agreement is executed solely in exchange for the
consideration expressly provided by this Agreement.
6. Employee agrees that in the event the Company breaches any of
the provisions of this Agreement, his sole remedy for such breach shall be the
enforcement of the terms of this Agreement.
7. This Agreement shall be governed by the laws of the State of
Pennsylvania, and constitutes the entire and exclusive agreement between the
parties hereto and shall supersede all previous or contemporaneous negotiations,
commitments, statements, and writings, except for Employee's continuing
obligations under the Employment Agreement.
8. The Company may only assign its rights, liabilities, and
obligations hereunder in the event of an assignment of the Employment Agreement
with respect to which the Company has complied with its obligations under
Section 18 of the Employment Agreement. This Agreement shall bind and inure to
the benefit of any such assignee or any successor to the Company.
9. Unless otherwise set forth herein, all notices, requests,
consents, and other communications required or permitted hereunder shall be in
writing and shall be hand delivered or mailed by registered or certified mail,
return receipt requested addressed as follows, or to such other address as may
be provided by the respective parties to this Agreement:
(a) If to the Company:
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The Bon-Ton Stores, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxx, XX 00000
Attention: Chief Employee Officer
with a copy to:
Xxxxx X. Xxxxxx, Esquire
Wolf, Block, Xxxxxx and Xxxxx-Xxxxx LLP
0000 Xxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxxxx, XX 00000-0000
(b) If to Employee:
Xxxxx Xxxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
with a copy to:
Xxxxxxx Xxxxx, Esq.
Xxxxxx & Whitney LLP
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
10. Employee agrees and represents that:
(a) He has read carefully the terms of this Agreement,
including the general release contained in paragraph 3;
(b) He has had an opportunity to and has been advised in
writing to review this Agreement and general release with an attorney;
(c) He understands the meaning and effect of the terms of
this Agreement, including the general release;
(d) He was given at least twenty-one (21) days to
determine whether he wished to enter into this Agreement;
(e) The entry into and execution of this Agreement,
including the general release, is his own free and voluntary act, without
compulsion or coercion of any kind; and
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(f) This Agreement is supported by full and adequate
consideration.
11. Employee may revoke this Agreement for a period of seven (7)
days following the execution of this Agreement. The Agreement shall not be
effective or enforceable until the revocation period has expired. Any revocation
must be in a writing signed by Employee and be mailed to or received by Xxxxx X.
Xxxxxx, Esquire, at his address as set forth in Section 10 hereof, before the
revocation period has expired. The date the letter is post-marked will be deemed
to be the date of mailing.
12. This Agreement shall be null and void if Employee does not
receive a Separation Agreement and General Release substantially in the form of
Exhibit "B" to the Employment Agreement concurrently with his execution and
delivery of this Agreement.
IN WITNESS WHEREOF, intending to be legally bound, the undersigned have
hereto set their hands on the date(s) set forth below.
AGREED AND UNDERSTOOD:
The Bon-Ton Stores, Inc.
By: _________________________
By: _________________________
XXXXX XXXXXXX
Dated: __________
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EXHIBIT "B"
SEPARATION AGREEMENT AND GENERAL RELEASE
THIS Separation Agreement and General Release ("Agreement") is by and
between The Bon-Ton Stores, Inc. (the "Company" or "Bon-Ton") and Xxxxx Xxxxxxx
("Xxxxxxx").
WITNESSETH:
WHEREAS, Xxxxxxx was employed by the Company under an Employment
Agreement entered into in November, 2003 (the "Employment Agreement");
WHEREAS, the Employment Agreement provides for certain payments and
benefits conditioned upon, inter alia, the execution of a release by Xxxxxxx;
WHEREAS, the Employment Agreement provides for the execution of a
release by the Company in connection with the execution of a release by Xxxxxxx;
WHEREAS, Xxxxxxx'x employment with the Company has ceased and he has
executed a release of the Company;
NOW, THEREFORE, the parties agree as follows:
1. The foregoing recitals are incorporated herein as if set forth
at length.
2. The Company intending to be legally bound, releases and
forever discharges Xxxxxxx and his respective successors and assigns
(collectively "Releasees"), jointly and severally, from any and all actions,
charges, causes of action or claims of any kind (collectively "Claims"), known
or unknown, which the Company or its successors or assigns may have against
Releasees arising out of any matter, omission, occurrence or event existing or
occurring prior to the execution hereof, including, without limitation: any
claims relating to or arising out of this employment with and/or termination of
employment with the Company; and/or any common law claims, now existing or
hereafter recognized, such as breach of contract, libel, slander, promissory
estoppel, and breach of implied covenant of good faith and fair dealing. It is
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specifically agreed that this release does not apply to claims to enforce
Section 11 of the Employment Agreement.
3. The Company agrees and admits that no representation of fact
or opinion has been made to induce this Agreement and that this Agreement is
executed solely in exchange for the consideration expressly provided by this
Agreement.
4. This Agreement shall be governed by the laws of the State of
Pennsylvania, and constitutes the entire and exclusive agreement between the
parties hereto and shall supersede all previous or contemporaneous negotiations,
commitments, statements, and writings, except for Xxxxxxx'x continuing
obligations under the Employment Agreement.
5. Unless otherwise set forth herein, all notices, requests,
consents, and other communications required or permitted hereunder shall be in
writing and shall be hand delivered or mailed by registered or certified mail,
return receipt requested addressed as follows, or to such other address as may
be provided by the respective parties to this Agreement:
(a) If to the Company:
The Bon-Ton Stores, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxx, XX 00000
Attention: Chief Employee Officer
with a copy to:
Xxxxx X. Xxxxxx, Esquire
Wolf, Block, Xxxxxx and Xxxxx-Xxxxx LLP
0000 Xxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxxxx, XX 00000-0000
(b) If to Employee:
Xxxxx Xxxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
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with a copy to:
Xxxxxxx Xxxxx, Esq.
Xxxxxx & Whitney LLP
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
6. The Company agrees and represents that this Agreement is
supported by full and adequate consideration.
7. This Agreement shall be null and void if Xxxxxxx revokes his
Separation Agreement and General Release executed and delivered concurrently
with the Agreement. IN WITNESS WHEREOF, intending to be legally bound, the
undersigned have hereto set their hands on the date(s) set forth below.
AGREED AND UNDERSTOOD:
The Bon-Ton Stores, Inc.
By: ___________________________
By: ___________________________
XXXXX XXXXXXX
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