Exhibit 99.3
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT"), dated as of October
31, 2003, by and between THE BON-TON STORES, INC., a Pennsylvania corporation
(the "COMPANY"), and TIM GRUMBACHER ("GRUMBACHER").
WHEREAS:
A. In connection with the Stock Purchase Agreement dated as of October
23, 2003 by and between the Company and Grumbacher (the "Stock Purchase
Agreement"), Grumbacher has agreed, upon the terms and subject to the conditions
contained therein, to purchase from the Company 476,890 Shares (the "Shares") of
the Company's common stock, $.01 par value per share (the "Common Stock"); and
B. To induce Grumbacher to execute and deliver the Stock Purchase
Agreement and to purchase the Shares, the Company has agreed to provide
Grumbacher with certain registration rights under the Securities Act of 1933, as
amended, and the rules and regulations thereunder, or any similar successor
statute (collectively, the "Securities Act"), and applicable state securities
laws.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, intending to be
legally bound, the Company and Grumbacher hereby agree as follows:
1. REGISTRATION RIGHTS.
1.1 Definitions. For purposes of this Section 1:
(a) Registration. The terms "register," "registered," and
"registration" refer to a registration effected by preparing and filing a
registration statement or statements in compliance with the Securities Act and
pursuant to Rule 415 under the Securities Act or any successor rule providing
for offering securities on a continuous basis, and the declaration or ordering
of effectiveness of such registration statement.
(b) Registrable Securities. The term "Registrable
Securities" means: (i) the Shares, and (ii) any shares of Common Stock issued as
a dividend or other distribution with respect to, in exchange for or in
replacement of, all such shares of Common Stock described in clause (i) or (ii)
of this subsection (b).
(c) Registrable Securities Then Outstanding. "Registrable
Securities then outstanding" shall mean the number of shares of Common Stock
that are Registrable Securities and are then issued and outstanding.
(d) Holder. For purposes of this Section 1 and Section 2
hereof, the term "Holder" or "Holders" means (i) Grumbacher or (ii) any assignee
of record of such Registrable
Securities to whom rights under this Section 1 have been duly assigned in
accordance with this Agreement.
(e) Form S-3. The term "Form S-3" means such form under
the Securities Act as is in effect on the date hereof or any successor
registration form under the Securities Act subsequently adopted by the SEC (as
defined below) that permits inclusion or incorporation of substantial
information by reference to other documents filed by the Company with the SEC
after the effective date of such registration statement.
(f) SEC. The term "SEC" means the United States
Securities and Exchange Commission.
1.2 Piggyback Registrations. The Company shall notify all Holders
of Registrable Securities in writing at least thirty (30) days prior to filing
any registration statement under the Securities Act for purposes of effecting a
public offering of securities of the Company (including, but not limited to,
registration statements relating to secondary offerings of securities of the
Company, but excluding registration statements relating to any registration
under Section 1.3 of this Agreement or to any employee benefit plan or a
corporate reorganization or business combination transaction) and will afford
each such Holder an opportunity to include in such registration statement all or
any part of the Registrable Securities then held by such Holder. Each Holder
desiring to include in any such registration statement all or any part of the
Registrable Securities held by such Holder shall, within twenty (20) days after
receipt of the above-described notice from the Company, so notify the Company in
writing, and in such notice shall inform the Company of the number of
Registrable Securities such Holder wishes to include in such registration
statement. If a Holder decides not to include all of its Registrable Securities
in any registration statement thereafter filed by the Company, such Holder shall
nevertheless continue to have the right to include any Registrable Securities in
any subsequent registration statement or registration statements as may be filed
by the Company with respect to offerings of its securities, all upon the terms
and conditions set forth herein.
(a) Underwriting. If a registration statement under which
the Company gives notice under this Section 1.2 is for an underwritten offering,
then the Company shall so advise the Holders of Registrable Securities. In such
event, the right of any such Holder's Registrable Securities to be included in a
registration pursuant to this Section 1.2 shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their Registrable Securities through such
underwriting shall enter into an underwriting agreement in customary form with
the managing underwriter or underwriter(s) selected for such underwriting.
Notwithstanding any other provision of this Agreement, if the Company or its
managing underwriter(s) determine(s) in good faith that marketing factors
require a limitation of the number of shares to be underwritten, then the
managing underwriter(s) may exclude shares (including Registrable Securities)
from the registration and the underwriting, and the number of shares that may be
included in the registration and the underwriting shall be allocated, first, to
the Company, and second, to each of the Holders requesting inclusion of their
Registrable
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Securities in such registration statement on a pro rata basis based on the total
number of Registrable Securities requested by each such Holder to be included in
the registration. If any Holder disapproves of the terms of any such
underwriting, such Holder may elect to withdraw therefrom by written notice to
the Company and the underwriter, delivered at least ten (10) business days prior
to the effective date of the registration statement. Any Registrable Securities
excluded or withdrawn from such underwriting shall be excluded and withdrawn
from the registration.
(b) Expenses. All expenses incurred in connection with a
registration pursuant to this Section 1.2 (excluding underwriters' and brokers'
discounts and commissions), including, without limitation all federal and "blue
sky" registration and qualification fees, printers' and accounting fees, fees
and disbursements of counsel for the Company and reasonable fees and
disbursements of one (1) counsel for the selling Holder or Holders, selected by
the selling Holder or Holders holding a majority of the shares included in the
registration by all selling Holders, shall be borne by the Company.
1.3 Form S-3 Registration. In case the Company shall receive from
any Holder or Holders of Registrable Securities a written request or requests
that the Company effect a registration on Form S-3 and any related qualification
or compliance with respect to all or a part of the Registrable Securities owned
by such Holder or Holders, then the Company will:
(a) promptly give written notice of the proposed
registration and the Holder's or Holders' request therefor, and any related
qualification or compliance, to all other Holders of Registrable Securities; and
(b) as soon as practicable, effect such registration and
all such qualifications and compliances as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion of such
Holder's or Holders' Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any other
Holder or Holders joining in such request as are specified in a written request
given within twenty (20) days after receipt of such written notice from the
Company; provided, however, that the Company shall not be obligated to effect
any such registration, qualification or compliance pursuant to this Section 1.3:
(i) if Form S-3 is not available for such
offering by the Holders;
(ii) if the Holders, together with the holders of
any other securities of the Company entitled to inclusion in such registration,
propose to sell Registrable Securities and such other securities (if any) at an
aggregate price to the public of less than One Million Dollars ($1,000,000);
(iii) if the Company shall furnish to the Holders
a certificate signed by the President or Chief Executive Officer of the Company
stating that, in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company and its stockholders
for such Form S-3 registration to be effected at such time;
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(iv) if the Company has, within the twelve (12)
month period preceding the date of such request, already effected one (1)
registration on Form S-3 for Holders pursuant to this Section 1.3; or
(v) in any jurisdiction in which the Company
would be required to (A) qualify as a foreign corporation or as a dealer in
securities in such jurisdiction where it would not otherwise be required to
qualify but for this Agreement or (B) take any action that would subject it to
general service of process in suits or to taxation in such jurisdiction where it
is not then so subject.
(c) Expenses. Subject to the foregoing, the Company shall
file a Form S-3 registration statement covering the Registrable Securities and
other securities so requested to be registered pursuant to this Section 1.3 as
soon as practicable after receipt of the request(s) of the Holder(s) for such
registration. The Company shall pay all expenses incurred in connection with
each registration requested pursuant to this Section 1.3 (excluding
underwriters' or brokers' discounts and commissions), including without
limitation all filing, registration and qualification, printers' and accounting
fees, fees and disbursements of counsel for the Company and reasonable fees and
disbursements of one (1) counsel for the selling Holder or Holders selected by
the selling Holder or Holders owning a majority of the shares included in the
registration owned by all selling Holders.
1.4 Obligations of the Company. Whenever required to effect the
registration of any Registrable Securities under this Agreement, the Company
shall, as expeditiously as reasonably possible:
(a) prepare and file with the SEC a registration
statement with respect to such Registrable Securities and use its reasonable
efforts to cause such registration statement to become effective, and, upon the
request of the Holders of a majority of the Registrable Securities being
registered thereunder, use its reasonable effects to keep such registration
statement effective for up to one hundred twenty (120) days or until the Holders
have completed the distribution referred to in such registration statement,
whichever occurs first (but in any event for at least any period required under
the Securities Act); provided that before filing such registration statement or
any amendments thereto, the Company will furnish to the Holders copies of all
such documents proposed to be filed;
(b) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement;
(c) furnish to the Holders such number of copies of such
registration statement and of each amendment and supplement thereto (in each
case including all exhibits), such number of copies of the prospectus contained
in such registration statement (including each preliminary prospectus and any
summary prospectus) and any other prospectus filed under Rule 424 under the
Securities Act, in conformity with the requirements of the Securities Act, and
such
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other documents as Holders may reasonably request in order to facilitate the
disposition of Registrable Securities owned by them;
(d) use its reasonable efforts to register and qualify
the securities covered by such registration statement under such other
securities or "blue sky" laws of such states or jurisdictions as shall be
reasonably requested by the Holders, provided that the Company shall not be
required in connection therewith or as a condition thereto (i) to qualify to do
business in any state or jurisdiction where it would not otherwise be required
to qualify but for the requirements of this clause (d), or (ii) to file a
general consent to service of process in any such state or jurisdiction;
(e) use its reasonable efforts to cause all Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
by virtue of the Company's business or operations to enable the seller or
sellers thereof to consummate the disposition of such Registrable Securities;
(f) in the event of any underwritten public offering,
enter into and perform its obligations under an underwriting agreement, in usual
and customary form, with the managing underwriter(s) of such offering;
(g) notify each Holder of Registrable Securities covered
by such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing;
(h) notify each Holder of Registrable Securities covered
by such registration statement of the underwriters, if any, and confirm in
writing: (i) when the registration statement has become effective; (ii) when any
post-effective amendment to the registration statement becomes effective; and
(iii) of any request by the SEC for any amendment or supplement to the
registration statement or prospectus or for additional information;
(i) notify each Holder of Registrable Securities if at
any time the SEC should institute or threaten to institute any proceedings for
the purpose of issuing, or should issue, a stop order suspending the
effectiveness of the registration statement. Upon the occurrence of any of the
events mentioned in the preceding sentence, the Company will use its reasonable
efforts to prevent the issuance of any stop order or to obtain the withdrawal
thereof as soon as possible. The Company will advise each Holder of Registrable
Securities promptly of any order or communication of any public board or body
addressed to the Company suspending or threatening to suspend the qualification
of any Registrable Securities for sale in any jurisdiction;
(j) furnish, at the request of any Holder requesting
registration of Registrable Securities pursuant to this Agreement, (i) on the
date that such Registrable Securities are delivered to the underwriters for sale
in connection with a registration pursuant to this
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Agreement, if such securities are being sold through underwriters, or, if such
securities are not being sold through underwriters, on the date that the
registration statement with respect to such securities becomes effective, an
opinion, dated such date, of the counsel representing the Company for the
purposes of such registration, in form and substance as is customarily given to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and to the Holders requesting registration of Registrable Securities and
(ii) on the date that the registration statement with respect to such securities
becomes effective, a "comfort" letter dated such date, from the independent
certified public accountants of the Company, in form and substance as is
customarily given by independent certified public accountants to underwriters in
an underwritten public offering, addressed to the underwriters, if any, and to
the Holders requesting registration of Registrable Securities, and, if such
securities are being sold through underwriters, a reaffirmation of such letter
on the date that such Registrable Securities are delivered to the underwriters
for sale;
(k) as soon as practicable after the effective date of
the registration statement, and in any event within sixteen (16) months
thereafter, have "made generally available to its security holders" (within the
meaning of Rule 158 under the Securities Act) an earning statement (which need
not be audited) covering a period of at least twelve (12) months beginning after
the effective date of the registration statement and otherwise complying with
Section 11(a) of the Securities Act;
(l) otherwise use all reasonable efforts to comply with
all applicable rules and regulations of the SEC;
(m) use all reasonable efforts to cause all the
Registrable Securities either (i) to be listed on a national securities exchange
(if the Registrable Securities are not already so listed) and on each additional
national securities exchange on which similar securities issued by the Company
are then listed, if the listing of the Registrable Securities is then permitted
under the rules of such exchange, or (ii) to secure designation of all the
Registrable Securities as a NASDAQ "national market system security" within the
meaning of Rule 11Aa2-1 promulgated by the SEC under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), or, failing that, to secure listing on
NASDAQ for the Registrable Securities and, without limiting the generality of
the foregoing, to arrange for at least one (1) market maker to register as such
with respect to Registrable Securities with the National Association of
Securities Dealers;
(n) make available for inspection by any seller of
Registrable Securities, by any underwriter participating in any disposition to
be effected pursuant to such registration statement and by any attorney,
accountant or other agent retained by any such seller or any such underwriter,
all pertinent financial and other records and pertinent corporate documents and
properties of the Company, and cause all of the Company's officers, directors
and employees to supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such registration
statement; and
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(o) make such representations and warranties to the
selling Holders and the underwriters as are customarily made by issuers to
underwriters and selling Holders, as the case may be, in primary underwritten
public offerings.
1.5 Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to Sections 1.2 or 1.3
hereof that the selling Holders shall furnish to the Company such information
regarding themselves, the Registrable Securities held by them and the intended
method of disposition of such securities as shall be required to timely effect
the registration of their Registrable Securities. If any registration statement
or comparable statement under the Securities Act refers to a Holder or any of
its affiliates, by name or otherwise, as the holder of any securities of the
Company then, unless counsel to the Company advises the Company that the
Securities Act requires that such reference be included in any such statement,
each such Holder shall have the right to require the deletion of such reference
to itself and its affiliates.
1.6 Delay of Registration. No Holder shall have any right to
obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 1.
1.7 Indemnification. In the event any Registrable Securities are
included in a registration statement under Sections 1.2 or 1.3 hereof:
(a) By the Company. To the extent permitted by law, the
Company will indemnify and hold harmless each Holder, the trustees, partners,
officers and directors of each Holder, any underwriter (as defined in the
Securities Act) for such Holder and each person, if any, who controls such
Holder or underwriter within the meaning of the Securities Act or the Exchange
Act, against any losses, claims, damages, or liabilities (joint or several) to
which they may become subject under the Securities Act, the Exchange Act or
other federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based upon any
of the following statements, omissions or violations (collectively a
"Violation"):
(i) any untrue statement or alleged untrue
statement of a material fact contained in a registration statement under this
Agreement, including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto or any documents filed under
state securities or "blue sky" laws in connection therewith;
(ii) the omission or alleged omission to state
therein a material fact required to be stated therein, or necessary to make the
statements therein not misleading; or
(iii) any violation or alleged violation by the
Company of the Securities Act, the Exchange Act, any federal or state securities
law or any rule or regulation promulgated under the Securities Act, the Exchange
Act or any federal or state securities law in connection with the offering
covered by such registration statement;
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and the Company will reimburse each such Holder, trustee, partner, officer or
director, underwriter or controlling person for any legal or other expenses
incurred by them, as incurred, in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
indemnity agreement contained in this subsection 1.7(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld), nor shall the Company be liable in any such
case for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by such Holder, trustee, partner, officer, director,
underwriter or controlling person of such Holder.
(b) By Selling Holders. To the extent permitted by law,
each selling Holder will indemnify and hold harmless the Company, each of its
directors, each of its officers who have signed the registration statement, each
person, if any, who controls the Company within the meaning of the Securities
Act, any underwriter and any other Holder selling securities under such
registration statement or any of such other Holder's partners, directors or
officers or any person who controls such Holder within the meaning of the
Securities Act or the Exchange Act, against any losses, claims, damages or
liabilities (joint or several) to which the Company or any such director,
officer, controlling person, underwriter or other such Holder, partner or
director, officer or controlling person of such other Holder may become subject
under the Securities Act, the Exchange Act or other federal or state law,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereto) arise out of or are based upon any Violation, in each case to the
extent (and only to the extent) that such Violation occurs in reliance upon and
in conformity with written information furnished by such Holder expressly for
use in connection with such registration; and each such Holder will reimburse
any legal or other expenses reasonably incurred by the Company or any such
director, officer, controlling person, underwriter or other Holder, partner,
officer, director or controlling person of such other Holder in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the indemnity agreement contained in this subsection
1.7(b) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of the Holder (which consent shall not be unreasonably withheld); and provided
further, that the total amounts payable in indemnity by a Holder under this
Section 1.7(b) in respect of any Violation shall not exceed the net proceeds
received by such Holder in the registered offering out of which such Violation
arises.
(c) Notice. Promptly after receipt by an indemnified
party under this Section 1.7 of notice of the commencement of any action
(including any governmental action), such indemnified party will, if a claim in
respect thereof is to be made against any indemnifying party under this Section
1.7, deliver to the indemnifying party a written notice of the commencement
thereof and the indemnifying party shall have the right to participate in, and,
to the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with counsel
mutually satisfactory to the parties; provided, however, that an indemnified
party shall have the right to retain its own counsel, with
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the fees and expenses to be paid by the indemnifying party, if representation of
such indemnified party by the counsel retained by the indemnifying party would
be inappropriate due to actual or potential conflict of interests between such
indemnified party and any other party represented by such counsel in such
proceeding. The failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such action, if prejudicial
to its ability to defend such action, shall to the extent of such prejudice
relieve such indemnifying party of any liability to the indemnified party under
this Section 1.7, but the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 1.7.
(d) Contribution. If for any reason the foregoing
indemnity is unavailable, then the indemnifying party shall contribute to the
amount paid or payable by the indemnified party as a result of such losses,
claims, damages, liabilities or expenses (i) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying party
on the one hand and the indemnified party on the other (taking into
consideration, among other things, the fact that the provision of the
registration rights and indemnification hereunder is a material inducement to
Grumbacher to purchase the Shares) or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law or provides a lesser sum to the
indemnified party than the amount hereinafter calculated, in such proportion as
is appropriate to reflect not only the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other
(taking into consideration, among other things, the fact that the provision of
the registration rights and indemnification hereunder is a material inducement
to Grumbacher to purchase the Shares) but also the relative fault of the
indemnifying party and the indemnified party as well as any other relevant
equitable considerations. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by or on behalf of the indemnifying party or the
indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
Notwithstanding anything to the contrary in this Section 1.7, no Holder shall be
required, pursuant to this Section 1.7, to contribute any amount in excess of
the net proceeds received by such indemnifying party from the sale of Common
Stock in the offering to which the losses, claims, damages, liabilities or
expenses of the indemnified party relate.
(e) Survival. The obligations of the Company and Holders
under this Section 1.7 shall survive the completion of any offering of
Registrable Securities in a registration statement, and otherwise.
1.8 Termination of the Company's Obligations. The Company shall
have no obligations pursuant to Sections 1.2 or 1.3 with respect to any
Registrable Securities if, in the opinion of counsel to the Company, all such
Registrable Securities proposed to be sold by a
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Holder may be sold without registration under the Securities Act pursuant to
Rule 144(k) under the Securities Act.
2. ASSIGNMENT AND AMENDMENT.
2.1 Assignment. The rights to cause the Company to register
Registrable Securities pursuant to this Agreement may be assigned in whole or in
part by a Holder to one or more of such Holder's spouse, lineal ascendants or
descendants, brothers or sisters ("Family Members"), or trusts established for
the benefit of any such Family Members or, if the Holder is a trust, to the
beneficiary thereof provided that such transferee or assignee delivers to the
Company a written instrument by which such transferee or assignee agrees to be
bound by the obligations imposed on Holders under this Agreement to the same
extent as if such transferee or assignee was a party hereto.
2.2 Amendment; Waiver. Any provision of this Agreement may be
amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and Grumbacher. 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
party to be charged, provided that Grumbacher (so long as he holds Registrable
Securities) may act on behalf of all such Holders of Registrable Securities. Any
amendment or waiver effected in accordance with this Section 2.2 shall be
binding upon each Holder of Registrable Securities, each future Holder and
holder of all such securities, and the Company.
3. LIMITATIONS. The Company shall not, directly or indirectly, enter into
any merger, consolidation or reorganization in which the Company shall not be
the surviving corporation unless the proposed surviving corporation shall, prior
to such merger, consolidation or reorganization, agree in writing to assume the
obligations of the Company under this Agreement, and for that purpose references
hereunder to "Registrable Securities" shall be deemed to be references to the
securities which the Holders would be entitled to receive in exchange for
Registrable Securities under any such merger, consolidation or reorganization;
provided, however, that the provisions of this Agreement shall not apply in the
event of any merger, consolidation or reorganization in which the Company is not
the surviving corporation if the Holders of Registrable Securities are entitled
to receive in exchange therefore (i) cash, (ii) securities of the acquiring
corporation which have been registered under the Securities Act in connection
with the merger, consolidation or reorganization, and/or (iii) securities of the
acquiring corporation which the acquiring corporation has agreed to register
within ninety (90) days of the completion of the transaction for resale to the
public pursuant to the Securities Act.
4. GENERAL PROVISIONS.
4.1 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon receipt by the party to be notified or three (3) days
after deposit with the United States Post Office, by registered or certified
mail, postage prepaid (or by Federal Express or other similar overnight
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courier service, so long as written acknowledgement of delivery is obtained),
and addressed to the party to be notified (a) if to a party other than the
Company, at such party's address set forth at the end of this Agreement, or at
such other address as such party shall have furnished the Company in writing,
or, until any such party so furnishes an address to the Company, then to and at
the address of the last holder of the shares covered by this Agreement who has
so furnished an address to the Company, or (b) if to the Company, at its
principal executive offices.
4.2 Entire Agreement. This Agreement, together with all the
exhibits hereto, constitutes and contains the entire agreement and understanding
of the parties with respect to the subject matter hereof and supersedes any and
all prior negotiations, correspondence, agreements, understandings, duties or
obligations between the parties respecting the subject matter hereof.
4.3 Governing Law. This Agreement shall be governed by and
construed exclusively in accordance with the internal laws of the Commonwealth
of Pennsylvania as applied to agreements among Pennsylvania residents entered
into and to be performed entirely within Pennsylvania, whether or not all
parties hereto are residents of Pennsylvania, excluding that body of law
relating to conflict of laws and choice of law.
4.4 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, then such provision(s) shall be
excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision(s) were so excluded and shall be enforceable in
accordance with its terms.
4.5 Third Parties. Nothing in this Agreement, express or implied,
is intended to confer upon any person, other than the parties hereto and their
successors and assigns, any rights or remedies under or by reason of this
Agreement.
4.6 Successors and Assigns. Subject to the provisions of Section
2.1, the provisions of this Agreement shall inure to the benefit of, and shall
be binding upon, the successors and permitted assigns of the parties hereto.
4.7 Captions. The captions to sections of this Agreement have been
inserted for identification and reference purposes only and shall not be used to
construe or interpret this Agreement.
4.8 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
4.9 Costs and Attorneys' Fees. In the event that any action, suit
or other proceeding is instituted concerning or arising out of this Agreement or
any transaction contemplated hereunder, the prevailing party shall recover all
of such party's costs and attorneys' fees incurred in each such action, suit or
other proceeding, including any and all appeals or petitions therefrom.
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4.10 Adjustments for Stock Splits and Certain Other Changes.
Wherever in this Agreement there is a reference to a specific number of shares
of Common Stock of the Company of any class or series, then, upon the occurrence
of any subdivision, combination or stock dividend of such class or series of
stock, the specific number of shares so referenced in this Agreement shall
automatically be proportionally adjusted to reflect the affect on the
outstanding shares of such class or series of stock by such subdivision,
combination or stock dividend.
4.11 Aggregation of Stock. All shares held or acquired by
affiliated entities or persons shall be aggregated together for the purpose of
determining the availability of any rights under this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
COMPANY:
THE BON-TON STORES, INC.
By: /s/ Keith Plowman
-----------------------------------
Name: Keith Plowman
Title: Senior Vice President
HOLDER:
/s/ Tim Grumbacher
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Tim Grumbacher
Address: 2801 E. Market Street
York, PA 17402