Attached files
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8-K - FORM 8-K - BON TON STORES INC | c24786e8vk.htm |
EX-99.1 - EXHIBIT 99.1 - BON TON STORES INC | c24786exv99w1.htm |
EXHIBIT 10.1
SIXTH AMENDMENT TO EMPLOYMENT AGREEMENT
This SIXTH AMENDMENT TO EMPLOYMENT AGREEMENT (Sixth Amendment), dated November 14, 2011, is
by and between THE BON-TON STORES, INC., a Pennsylvania corporation (the Company), and BYRON L.
BERGREN (Employee).
W I T N E S S E T H:
WHEREAS, the Company and Employee entered into an Agreement dated as of August 24, 2004
(Original Agreement) with respect to the employment of Employee as the President and Chief
Executive Officer of the Company;
WHEREAS, the Company and Employee entered into an amendment to the Original Agreement as of
May 1, 2005 (First Amendment), a second amendment to the Original Agreement on May 23, 2006
(Second Amendment), a third amendment to the Original Agreement on July 19, 2007 (Third
Amendment), a fourth amendment to the Original Agreement on March 18, 2009 (Fourth Amendment),
and a fifth amendment to the Original Agreement on January 21, 2011 (Fifth Amendment);
WHEREAS, the Companys Board of Directors (Board) has approved this Sixth Amendment;
WHEREAS, capitalized terms used but not defined herein shall have the meanings ascribed
thereto in the Original Agreement, as previously amended by the First Amendment, the Second
Amendment, the Third Amendment, the Fourth Amendment and the Fifth Amendment (collectively, the
Agreement).
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. Effective Date of this Sixth Amendment. This Sixth Amendment shall be effective
upon execution by Employee and the Company.
2. Amendment of the Agreement.
(a) Notwithstanding any other provision of the Agreement to the contrary, if (i) at
any time after the date of this Sixth Amendment, Employees employment as President and/or
Chief Executive Officer of the Company is terminated by the Company without Cause, then
(ii) simultaneously with or promptly after such termination, Employee shall be appointed as
non-executive Chairman of Companys Board of Directors and Employee shall be entitled to
the following payments and benefits:
(A) Prompt payment of all accrued and unpaid Base Salary earned by
Employee under Paragraph 4(a) of the Agreement and accrued but unused
vacation pay through the date of termination of employment as President
and/or Chief Executive Officer; and
(B) If Employee has been employed for any portion of the Companys fiscal
year in which the termination of his employment occurs, Employee will
receive a pro-rated bonus, if earned by Employee under Paragraph 4(b) for
said fiscal year based on the Companys full-year performance, equal to
the amount of the applicable full-year bonus multiplied by a fraction, the
numerator of which is the number of days from January 29 of such year to
and including the date of such termination, and the denominator of which
is 365. The bonus, if any, under this clause (ii) will be paid at the
time that bonuses are paid to other Company senior executives for the
fiscal year in which the termination occurs.
(b) For purposes of clarification, in the event that clauses (a)(i) and (a)(ii) above
are satisfied, (i) such termination shall not constitute Good Reason, (ii) any unvested
equity award issued to Employee and outstanding as of the date of such termination shall
continue to vest in accordance with the vesting terms set forth in the applicable grant
document, (iii) Employee shall not be entitled to any compensation (whether cash
compensation or equity compensation), remuneration or benefit other than as specifically
provided in this Section 2 of this Sixth Amendment and, if and when applicable, Section
13(f)(i)(B)(I)(i) and 13(f)(i)(B)(I)(iii) of the Agreement relating to a Change of Control
Payment (without duplication, and provided that Section 13(f)(i)(B)(I)(i) shall not apply
if a Change of Control occurs following termination of Employees employment under Section
2(a) of this Sixth Amendment), and (iv) the date of such termination shall be deemed to be
the CEO Termination Date and shall be deemed to be the end of the CEO Term; further,
when Employee is appointed as the non-executive Chairman of the Board in accordance with
(a)(ii) above, the Company shall cause Employee to continue to be elected as a Director and
to be appointed as the non-executive Chairman of the Board, in each case through the date
of the first annual meeting of shareholders of the Company that is at least 12 months
following the CEO Termination Date. For purposes hereof, Section 13(f)(i)(B)(I)(iii) shall
be amended and restated to read as follows: (A) the Company publicly announces, within the
period that is 90 days prior to the end of the then-current CEO Term (including as a result
of a termination under Section 2(a) of the Sixth Amendment) until 90 days following the end
of such CEO Term, a potential transaction that would result in a Change of Control, (B)
Employee either receives a notice of non-renewal of such CEO Term from the Company pursuant
to Section 1(a) of the Fifth Amendment or is terminated without Cause under Section 2(a) of
the Sixth Amendment, and (C) such publicly announced transaction is consummated within nine
months of the CEO Termination Date.
(c) In the event that Employees employment is terminated other than in accordance
with Section 2(a) of this Sixth Amendment, Employee shall be entitled to receive such
compensation and benefits as are set forth in the Agreement.
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3. Controlling Law. This Sixth Amendment 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.
4. Execution in Counterparts. This Sixth Amendment 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 Sixth
Amendment shall become effective and binding when one or more counterparts hereof, individually or
taken together, shall bear the signatures of all of the parties hereto.
5. Effect of Amendment. Except as may be affected by this Sixth Amendment, all of the
provisions of the Agreement, as amended hereby, shall continue in full force and effect. The
provisions of this Sixth Amendment shall not constitute a waiver or modification of any terms or
conditions of the Agreement other than as expressly set forth herein.
6. No Injunctive Relief. Employee shall not be entitled to injunctive or other
equitable relief in connection with any violation or alleged violation of the Agreement, as
amended, by the Company.
[Signature page follows]
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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:
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/s/ Tim Grumbacher
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Date: November 14, 2011 | ||
Executive Chairman of the Board | ||||
/s/ Byron L. Bergren
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Date: November 14, 2011 |
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