EMPLOYMENT AGREEMENT
Exhibit 10.4
THIS AGREEMENT (“Agreement”) is by and between THE BON-TON STORES, INC., a Pennsylvania corporation
(the “Company”), and XXXXXXX XXXXX (the “Employee”) as of the 1st day of February, 2009.
W I T N E S S E T H:
WHEREAS, Employee is currently party to an Employment Agreement dated June 28, 2006, as
amended by the First Amendment to Employment Agreement dated December 20, 2006, the term of which
expires January 31, 2009 (together, the “Prior Employment Agreement”); and
WHEREAS, the Company and Employee have agreed upon terms upon which Employee will continue his
employment with the Company.
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 continued employment by
the Company as the Company’s Vice Chairman, Stores, Visual, Construction, Real Estate, Distribution
& Logistics, Loss Prevention. Employee will perform duties as determined by the Chief Executive
Officer of the Company. Employee shall report directly to the Chief Executive Officer or such other
senior executive officer of the Company designated by the Chief Executive Officer or the person
performing the duties of the Chief Executive Officer. In addition, Employee shall be a member of
the Management Committee and the Operating Committee.
(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. Approval of board memberships and participation in lectures and teaching
activities will be at the discretion of the Chief Executive Officer; however, such approval will
not be unreasonably withheld, provided that such activities do not significantly interfere with
Employee’s duties under this Agreement. Employee shall comply with the Company’s Code of Ethical
Standards and Business Practices.
2. Term and Renewal. This Agreement shall become effective on February 1, 2009, provided
that this Agreement has been signed by Employee and the Company and these terms approved by the
Human Resources and the Compensation Committee (“HRCC”) of
the Company’s Board of Directors. The initial term shall continue through April 30, 2011, unless
sooner terminated in accordance with paragraph 9 below (the “Initial Term”). Unless terminated by
either party not later than the last Friday in January preceding the termination date of the
Agreement, this Agreement shall renew for successive one-year terms beginning May 1st of
each such year.
3. Place of Performance. Employee shall be based at the office of the Company in Milwaukee,
Wisconsin, except for travel required for Company business.
4. Compensation.
(a) Salary. Employee shall receive a base salary (the “Base Salary”) at the annual
rate of $533,500, effective February 1, 2009. This Base Salary, less taxes and normal deductions,
shall be paid to Employee in substantially equal installments in accordance with the Company’s
regular executive payroll practices in effect from time to time. The Base Salary may be reviewed
from time to time, but no less than annually, during the term of this Agreement by the Chief
Executive Officer (subject to review by the HRCC) to ascertain whether, in the Company’s sole
discretion, such Base Salary should be increased, and once increased, such Base Salary shall not be
decreased. The first such salary review shall occur for Fiscal Year 2009 consistent with the
Company’s practice for such year for similar senior executives.
(b) Restricted Shares. On February 2, 2009, Employee will be granted 70,000 restricted
shares of the Company’s Common Stock (“Restricted Shares”) pursuant to the terms of the 2000 Stock
Incentive and Performance-Based Award Plan (the “SIP”). Employee’s ownership of the Restricted
Shares will vest on April 30, 2011, provided he is still employed on such date.
(c) Performance Based Compensation.
(i) Annual Bonus.
A. For the Company’s Fiscal Year 2009 and thereafter, Employee shall be eligible for a bonus
under the Cash Bonus Plan (the “Annual Bonus”) with the following parameters: a target bonus of
100% of Employee’s Base Salary in effect on the last day of the relevant fiscal year; a threshold
bonus and a maximum bonus shall be as determined from time to time by the Company consistent with
other similar senior executives under the Cash Bonus Plan. The performance measures and weighting
of these performance measures shall be determined by the HRCC consistent with its determinations
for other senior executives under the Cash Bonus Plan.
B. Nothing herein is a guarantee that any Annual Bonus will be paid.
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C. To the extent reasonably practicable, the Annual Bonus shall be computed within 90 days
following the close of the Company’s fiscal year and paid within 30 days
of its computation. Employee must be employed on the last day of the Company’s fiscal year to
receive an Annual Bonus with respect to that fiscal year.
(ii) Performance-Based Award of Restricted Shares. Employee will be eligible to
receive 35,000 restricted shares of the Company’s Common Stock as a performance-based award for
Fiscal Year 2009 and 35,000 restricted shares of the Company’s Common Stock as a performance-based
award for Fiscal Year 2010 as set forth in a Stock Agreement entered into pursuant to the terms of
the SIP.
5. Allowances. The Company will reimburse employee on a one-time basis for reasonable
attorneys fees expended in review and negotiation of this Agreement, up to a maximum of $5,000.
6. Medical Insurance. During the term of his employment, Employee and his eligible
dependents shall be eligible to participate in the Company’s group medical, dental and vision plans
(the “Health Plans”) in accordance with the terms of the Health Plans and, subject to the
restrictions and limitations contained in the insurance agreement or agreements. For the number of
months for which the Employee is receiving severance payments pursuant to paragraph 10, (e.g., two
times base salary equals twenty-four months), Employee and his eligible dependents shall be
eligible to continue to participate in the Health Plans in which the Employee is enrolled at the
time of termination of employment, subject to the restrictions and limitations contained in the
insurance agreement or agreements. The Company shall pay the company contribution for such Health
Plans, and Employee shall pay the associate portion of Health Plan costs, as in effect at such
time.
7. Other Benefits. Employee shall be eligible to participate in the Company’s profit
sharing plan, deferred compensation plan, discount program, vacation plan, long-term disability
plan and employee benefit programs generally made available to other employees of the Company,
subject to their respective generally applicable eligibility requirements, terms, conditions and
restrictions; provided, however, that severance 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 the Company’s executives participating in
such insurance, benefit, program or plan generally. 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
Employee does not work the entire calendar year.
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8. Business Expenses. The Company shall pay or reimburse Employee for reasonable
entertainment and other expenses incurred by Employee in connection with the
performance of Employee’s duties under this Agreement upon receipt of vouchers therefor and in
accordance with the Company’s regular reimbursement procedures and practices in effect from time to
time.
9. Termination of Employment. Notwithstanding any other provision of this Agreement,
Employee’s employment and all of the Company’s obligations or liabilities under this Agreement may
be terminated immediately, excluding any obligations the Company may have under paragraph 10 below,
in any of the following circumstances:
(a) Disability or Incapacity. In the event of Employee’s physical or mental inability
to perform his essential duties hereunder, with or without reasonable accommodation, for a period
of 13 consecutive weeks or for a cumulative period of 26 weeks during any rolling 24-month period
during the term of this Agreement.
(b) Death of Employee. In the event of Employee’s death.
(c) Resignation for Good Reason. Employee may resign for “Good Reason,” defined below,
upon 30 days’ written notice by Employee to the Company except as set forth in paragraph 9(d)
below. 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 that 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: any reduction in Employee’s Base Salary;
except as provided in this Agreement, any reduction in Employee’s potential bonus target percentage
amounts; any relocation of Employee from Milwaukee, Wisconsin; and any substantial breach by the
Company of any material provision of this Agreement. Notwithstanding the foregoing, the acts or
omissions described above shall not constitute “Good Reason” unless 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 written notice.
(d) Change of Control. In the event of a Change of Control of the Company, provided
the Company or Surviving Company (as defined below) continues to pay Employee his Base Salary and
provide materially comparable benefits, Employee shall be prohibited from resigning for Good Reason
for a period of six months following the Change of Control. If, in the event of a Change of
Control, Employee is required to relocate from the Milwaukee, Wisconsin metropolitan area, Employee
may resign for Good Reason at any time. For purposes of this Agreement, a Change of Control shall
be deemed to occur if:
(i) any person who is not an affiliate of the Company on the date hereof becomes a beneficial
owner of a majority of the outstanding voting power of the Company’s capital stock;
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(ii) the shareholders of the Company approve and there is consummated any plan of liquidation
providing for the distribution of all or substantially all of the Company’s assets;
(iii) there is consummated a merger, consolidation or other form of business combination
involving the Company, or, in one transaction or a series of related transactions, a sale of all or
substantially all of the assets of the Company, unless, in any such case:
(A) the business of the Company is continued following such transaction by a resulting entity
(which may be, but need not be, the Company) (the “Surviving Company”); and
(B) persons who were the beneficial owners of a majority of the outstanding voting power of
the Company immediately prior to the completion of such transaction beneficially own, by reason of
such prior beneficial ownership, a majority of the outstanding voting power of the Surviving
Company (or a majority of the outstanding voting power of the direct or indirect parent of the
Surviving Company, as the case may be) immediately following the completion of such transaction; or
(iv) any person beneficially owns shares of the Company’s capital stock possessing a greater
voting power than held in the aggregate by M. Xxxxxx Xxxxxxxxxx, any member of his family, any
trust for the primary benefit of M. Xxxxxx Xxxxxxxxxx or any member of his family, and any
charitable foundation of which M. Xxxxxx Xxxxxxxxxx is a founder or co-founder with his wife
(collectively, the “Grumbacher Affiliates”), or if the Grumbacher Affiliates control less than
twenty percent (20%) of the outstanding voting power of the Company’s capital stock.
For purposes of this definition, the terms “person,” “beneficial owner,” “beneficial
ownership,” “affiliate” and “control” shall have the meanings ascribed to such terms under Sections
13(d) and 3(a)(9) and Rule 13d-3 under the Securities Exchange Act of 1934 as amended, and Rule 501
under the Securities Act of 1933 as amended, as applicable.
(e) Discharge for Cause. The Company may discharge Employee at any time for “Cause,”
which shall be limited to: Employee’s material and serious breach or neglect of
Employee’s responsibilities; willful violation or disregard of standards of conduct established by
law; willful violation or disregard of standards of conduct established by Company policy as may
from time to time be communicated to Employee; fraud, willful misconduct, misappropriation of funds
or other dishonesty; conviction of a crime of moral turpitude; any misrepresentation made in this
Agreement; or any material breach by Employee of any provision of this Agreement (including,
without limitation, acceptance of employment with another company or performing work or providing
advice to another company, as an employee, consultant or in any other similar capacity while still
an employee of the Company).
(f) Discharge without Cause. Notwithstanding any other provision of this Agreement,
Employee’s employment and any and all of the Company’s obligations under
this Agreement (excluding any obligations the Company may have under paragraph 10 below) may
be terminated by the Company at any time without Cause.
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10. Payments Upon Termination.
(a) Discharge Without Cause, Resignation for Good Reason, or End of Term. If Employee
is discharged without Cause or resigns for Good Reason during the term of this Agreement, Employee
shall receive severance pay equal to the greater of (i) his Base Salary for the remaining term of
this Agreement or (ii) two times his then Base Salary. The severance payment shall be payable in a
lump sum as soon as practicable following the six (6) month anniversary of Employee’s termination
of employment. The severance payment will be made provided that Employee signs and does not timely
revoke a general release of claims (including, without limitation, contractual, common law and
statutory claims) against the Company and its officers, directors, employees and agents. This
severance payment shall be in lieu of any other severance payment to which Employee is entitled by
reason of the Prior Employment Agreement or any severance plan sponsored by Saks, Inc. or the
Company. Employee will also receive any vested benefits to which Employee is entitled under the
Company’s stock options and employee benefit plans in accordance with, to the extent provided in,
and subject to the restrictions and payout schedules contained in these plans.
(b) Death or Disability/Incapacity.
(i) Upon death, Employee’s estate’s sole entitlement will be to Base Salary for any days
worked prior to his death, amounts payable on account of Employee’s death under any insurance or
benefit plans or policies maintained by the Company, and any vested benefits to which Employee is
entitled under the Company’s stock option and employee benefit plans in accordance with, to the
extent provided in, and subject to the restrictions and payout schedules contained in those plans.
(ii) On termination for disability or incapacity, Employee’s sole entitlement will be to Base
Salary for any days worked prior to the date of termination, amounts payable on account of
disability or incapacity under any insurance or benefit plans or policies maintained and any vested
benefits to which Employee is entitled under the Company’s stock option and employee benefit plans
in accordance with, to the extent provided in, and subject to the restrictions and payout schedules
contained in those plans.
(c) Discharge for Cause. If Employee is discharged for Cause or resigns without Good
Reason, Employee’s sole entitlement will be the receipt of Base Salary for any days worked through
the date of termination and any vested benefits to which Employee is entitled under the Company’s
stock option and employee benefit plans in accordance with, to the extent provided in, and subject
to the restrictions and payout schedules contained in those plans.
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(d) Change of Control.
(i) Upon a Change of Control as defined in paragraph 9(d) while Employee is employed pursuant
to this Agreement, if Employee is discharged without Cause or resigns for Good Reason within two
years of the consummation of the Change of Control, Employee shall receive severance pay equal to
(i) two times the average Base Salary paid to Employee for the most recently completed three W-2
years prior to discharge or resignation and (ii) two times the average Annual Bonus paid for the
most recently completed three W-2 years prior to discharge or resignation. The severance payment
shall be payable in a lump sum as soon as practicable following the six (6) month anniversary of
Employee’s termination of employment. The severance payment will be made provided that Employee
signs and does not timely revoke a general release of claims (including, without limitation,
contractual, common law and statutory claims) against the Company and its officers, directors,
employees and agents. This severance payment shall be in lieu of any other severance payment to
which Employee is entitled by reason of the Prior Employment Agreement or any severance plan
sponsored by Saks, Inc. or the Company.
(ii) Upon a Change of Control as defined in paragraph 9(d) while Employee is employed pursuant
to this Agreement, the vesting of stock options and Restricted Shares held by Employee shall be
governed by the terms of such stock options or Restricted Shares.
(iii) Notwithstanding any other provision of this Agreement, if the aggregate present value of
the “parachute payments” to the Employee, determined under Section 280G(b) of the Internal Revenue
Code of 1986, as amended (the “Code”), would be at least three times the “base amount” determined
under Code Section 280G, then the “280G Permitted Payment” shall be the maximum benefit that may be
realized upon a Change of Control under this paragraph 10(d) such that the aggregate present value
of such “parachute payments” to Employee is less than three times his “base amount.” In addition,
in the event the aggregate present value of the parachute payments to Employee would be at least
three times his base amount even after a reduction of the Change of Control benefits to $0 (all as
determined for purposes of Code Section 280G), compensation otherwise payable under this Agreement
and any other amount payable hereunder or any other severance plan, program, policy or obligation
of the Company or any other affiliate thereof that would constitute “parachute payments” shall be
reduced so that the aggregate present value of all “parachute payments” to Employee, as determined
under Code Section 280G(b) is less than three times his base amount. Any decisions regarding the
requirement or implementation of such reductions shall be made by such tax counsel as may be
selected by the Company and acceptable to Employee.
11. 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.
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12. Non-Competition and Confidentiality. To the maximum extent permissible by law:
(a) During his employment with the Company and for a period of one year after the termination
of his employment with the Company for any reason whatsoever, whether by Employee or by the Company
and whether during the term of this Agreement or subsequent to the expiration of this Agreement,
Employee shall not, directly or indirectly
induce or intentionally influence any customer, employee, consultant, independent contractor or
supplier of the Company to change his, her or its business relationship with or terminate
employment with the Company.
(b) During his employment with the Company and after the termination of his employment with
the Company for any reason whatsoever, whether by Employee or by the Company and whether during the
term of this Agreement or subsequent to the expiration of this Agreement for a period equal to
one-half of the period for which the Employee receives severance payments according to paragraph
10(a), Employee shall not engage in (as a principal, partner, director, officer, agent, employee,
consultant, owner, independent contractor or otherwise) or be financially interested in the retail
department store business of any Competitor of the Company. For purposes of this Agreement, a
Competitor means each of Federated Department Stores, Xxxxxxx’x Inc., Xxxx’x Corporation, Xxxx,
Inc. and X.X. Xxxxxx, Inc. or the affiliates and successors of each of them.
(c) 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, association or company other than the
Company, any confidential information of the Company that 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 material referred to in
paragraph 11 or any non-public 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, and agrees that, immediately
upon his termination, whether by Employee or by the Company and whether during the term of this
Agreement or subsequent to the expiration of this Agreement, Employee shall deliver to the Company
all correspondence, documents, books, records, lists, computer programs and other writings relating
to the Company’s business; and Employee shall retain no copies, regardless of where or by whom said
writings were kept or prepared.
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(d) Both during his employment with the Company and following his termination for
any reason, whether by Employee or by the Company and whether during the term of
this Agreement or following the expiration of the Agreement, Employee shall, upon reasonable
notice, furnish to the Company such information pertaining to his employment with the Company as
may be in his possession. The Company shall reimburse Employee for all reasonable expenses incurred
by him in fulfilling his obligation under this subparagraph (d).
(e) The provisions of subparagraphs (a), (b), (c) and (d) shall survive the
cessation of Employee’s employment for any reason, as well as the expiration of this Agreement at
the end of its term or at any time prior thereto.
(f) Employee acknowledges that the restrictions contained in this paragraph 12, 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, in addition to damages from Employee and an equitable
accounting of all commissions, earnings, profits and other benefits arising from such violation,
which rights shall be cumulative and in addition to any other rights or remedies to which the
Company may be entitled.
(g) Employee agrees that if any or any portion of the foregoing covenants, or the
application thereof, is construed to be invalid or unenforceable, the remainder of such covenant or
covenants or the application thereof shall not be affected and the remaining covenant or covenants
will then be given full force and effect without regard to the invalid or unenforceable portions.
If any covenant is held to be unenforceable because of the area covered, the duration thereof, or
the scope thereof, Employee agrees that the Court making such determination shall have the power to
reduce the area and/or the duration, and/or limit the scope thereof, and the covenant shall then be
enforceable in its reduced form. If Employee violates any of the restrictions contained in
subparagraphs (a) or (b), the period of such violation (from the commencement of any such violation
until such time as such violation shall be cured by Employee to the satisfaction of the Company)
shall not count toward or be included in the restrictive period contained in subparagraphs (a) and
(b).
(h) For purposes of paragraphs 11 and 12 of this Agreement, the term “Company” shall include
not only The Bon-Ton Stores, Inc., but also any of its successors, assigns, subsidiaries or
affiliates. Employee consents to the assignment of this Agreement to any purchaser of the Company
or a substantial portion of its assets.
13. Other Tax Matters.
(a) Employee agrees 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 and that the Company is entitled to withhold
any tax payments from amounts otherwise due Employee to the extent required by applicable
statutes, rulings or regulations.
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(b) Compliance With Code Section 409A.
(i) Notwithstanding anything to the contrary herein, no payment otherwise required to be made
hereunder that the Company determines constitutes a payment of nonqualified deferred compensation
for purposes of Section 409A of the Code shall be paid to Employee at a time or in a manner that
will be treated as a violation of the distribution rules of Code Section 409A(a)(2) and no
alternative form of payment of such amount(s) shall be permitted to be made hereunder if such
alternative benefit form would violate any of the requirements of Code Section 409A(a)(3) or
(4) relating to acceleration of benefits and changes in time and form of distribution (taking into
account any regulations or other guidance issued by Treasury or the Internal Revenue Service with
regard to these Code provisions as may be in effect from time to time).
(ii) The intent of this provision is to ensure that no additional tax liabilities are imposed
on any payments or benefits provided hereunder pursuant to Code Section 409A, and may require, for
example, a delay in commencement of payments until six months after Employee’s termination of
employment with the Company. In the event any payment is delayed by reason of this paragraph 13,
such payment shall, when made, be increased by an amount representing “interest” from the date
payment would otherwise have been made, through the date payment is actually made, calculated using
the Company’s cost of borrowing as the interest rate, as determined by the Company at its
discretion.
14. Prior Agreements.
(a) Employee represents that there are no restrictions, agreements or understandings
whatsoever to which Employee is a party that could impact upon his employment under this Agreement
or that would prevent or make unlawful his execution of this Agreement or his employment hereunder.
(b) Employee agrees that he will not use or disclose any confidential or proprietary
information of any of his prior employers during the course of his employment under this Agreement.
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 and Employee except as herein contained. The express terms hereof
control and supersede any course of performance and/or usage of the trade inconsistent with any of
the terms hereof.
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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 that assumes 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 UPS 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:
| (a) | If to the Company: | ||
| The Bon-Ton Stores, Inc. 000 X. Xxxxxxxxx Xxxxxx Xxxxxxxxx, XX 00000 Attention: Chief Executive Officer |
|||
| with a copy to: | |||
| The Bon-Ton Stores, Inc. 0000 Xxxx Xxxxxx Xxxxxx Xxxx, XX 00000 Attention: General Counsel |
|||
| (b) | If to Employee: | ||
| Xxxxxxx Xxxxx 000 Xxx Xxxx Xxxxx Xx. Xxxxxxx, XX 00000 |
In addition, notice by mail shall be by air mail or courier 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.
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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 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 by Employee. 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.
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.
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, 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.
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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/ Xxxxx X. Xxxxxxx | |||
| Xxxxx X. Xxxxxxx | ||||
| President and Chief Executive Officer | ||||
| EMPLOYEE: |
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| /s/ Xxxxxxx Xxxxx | ||||
| Xxxxxxx Xxxxx | ||||
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