<PAGE>
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement
under
The Securities Act of 1933
THE BON-TON STORES, INC.
-------------------------------------------------
(Exact name of Registrant as Specified in its Charter)
Pennsylvania 23-2835229
- -------------------------- ------------------------
(State of Incorporation) (I.R.S. Employer Identification No.)
2801 East Market Street, York, Pennsylvania 17402
-------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
THE BON-TON STORES, INC.
PERFORMANCE BASED STOCK INCENTIVE PLAN FOR HEYWOOD WILANSKY
-----------------------------------------------------------
(Full Title of the Plan)
Robert E. Stern, Esquire
Vice President, Secretary and General Counsel
The Bon-Ton Stores, Inc.
2801 East Market Street
York, Pennsylvania 17402
------------------------
(Name and Address of Agent For Service)
(717) 751-3285
----------------------------------------------------------------------
(Telephone Number, Including Area Code, of Agent For Service)
Copies to:
John M. Coogan, Jr., Esquire
Wolf, Block, Schorr and Solis-Cohen LLP
Twelfth Floor Packard Building
111 South 15th Street
Philadelphia, PA 19102-2678
(215) 977-2012
<PAGE>
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Proposed
Title of Maximum Maximum Amount of
Securities to be Amount to be Offering Price Aggregate Registration
Registered Registered(1) Per Share Offering Price Fee
- ------------------ --------------- --------------- ------------ -----------
<S> <C> <C> <C> <C>
Common Stock, 500,000 shares $(2) $(2) $1,761.15
$0.01 par value
per share
</TABLE>
- --------------------------------------------------------------------------------
(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended, this
Registration Statement also covers such additional shares as may hereafter
be offered or issued to prevent dilution resulting from stock splits, stock
dividends, recapitalizations or certain other capital adjustments.
(2) With respect to the shares registered hereunder, the proposed maximum
offering price per share shall be (i) with respect to 250,000 shares,
$15.88 per share, or the average of the high and low prices for the Common
Stock on July 1, 1998, as reported in The Nasdaq National Market, pursuant
to Rules 457(c) and 457(h)(1) under the Securities Act of 1933, as amended
(the "Act"), resulting in a maximum aggregate offering price of $3,970,000
with respect to such shares, and (ii) with respect to 250,000 shares, $8.00
per share, the price at which the option to purchase such shares under The
Bon-Ton Stores, Inc. Performance Based Stock Incentive Plan for Heywood
Wilansky may be exercised, pursuant to Rule 457(h)(1) under the Act,
resulting in a maximum aggregate offering price of $2,000,000 with respect
to such shares, resulting in a maximum aggregate offering price of
$5,970,000 with respect to the aggregate of the 500,000 shares registered
hereunder.
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<PAGE>
PART II
-------
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
--------------------------------------------------
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents filed with the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934 are incorporated into
this Registration Statement by reference:
1. The Registrant's Annual Report on Form 10-K for the fiscal year
ended January 31, 1998.
2. The Registrant's Current Report on Form 8-K dated March 26, 1998.
3. The Registrant's Quarterly Report on Form 10-Q for the quarter
ended May 2, 1998.
4. The description of the Registrant's shares of Common Stock, $0.01
par value (the "Common Stock"), contained in the Registration Statement on Form
8-A dated September 11, 1991, as amended by Form 8 dated September 16, 1991,
filed by the Registrant to register such securities under the Securities
Exchange Act of 1934, including all amendments and reports filed for the purpose
of updating such description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 after
the date of this Registration Statement and prior to the filing of a post-
effective amendment to this Registration Statement which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing such
documents. Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes hereof to the
extent that a statement contained herein (or in any other subsequently filed
document which also is incorporated by reference herein) modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed to
constitute a part hereof except as so modified or superseded.
Item 4. Description of Securities.
-------------------------
Not Applicable.
II-1
<PAGE>
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
The validity of the shares registered hereunder will be passed upon
for the Registrant by Wolf, Block, Schorr and Solis-Cohen LLP, Philadelphia,
Pennsylvania. A retired partner of that firm is a trustee of certain trusts for
the benefit of certain members of the family of M. Thomas Grumbacher, Chairman
of the Board of Directors and the controlling shareholder of the Registrant.
Such trusts own 333,504 shares of Common Stock and 545,237 shares of the
Company's Class A Common Stock, $0.01 par value per share. Such individual is
also one of three directors of The Grumbacher Family Foundation, a charitable
organization controlled by Mr. Grumbacher and members of his family, which owns
185,773 shares of Common Stock.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Section 1713 of Subchapter B of the Pennsylvania Business Corporation
Law of 1988, as amended (the "BCL"), provides that if the bylaws of a business
corporation so provide, no directors shall be personally liable for monetary
damages for any action or failure to act unless the director has breached or
failed to perform his or her duties under Subchapter B of Chapter 17 of the BCL
and the breach or failure to perform constitutes self-dealing, willful
misconduct or recklessness, provided that such provision does not apply to the
responsibility or liability of a director with respect to any criminal statute
or for the payment of taxes. The Registrant's Bylaws (the "Bylaws") contain
provisions which limit the liability of directors as described in Section 1713.
Subchapter D (Sections 1741 through 1750) of Chapter 17 of the BCL
contains provisions for mandatory and discretionary indemnification of a
corporation's directors, officers, employees and agents (collectively,
"Representatives"), and related matters.
Under Section 1741, subject to certain limitations, a corporation has
the power to indemnify directors, officers and other Representatives under
certain prescribed circumstances against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
in connection with a threatened, pending or completed action or proceeding,
whether civil, criminal, administrative or investigative, to which any of them
is a party or threatened to be made a party by reason of his being a
Representative of the corporation or serving at the request of the corporation
as a Representative of another corporation, partnership, joint venture, trust or
other enterprise, if he acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the corporation and,
with respect to any criminal proceeding, had no reasonable cause to believe his
conduct was unlawful.
Section 1742 provides for indemnification with respect to derivative
actions similar to that provided by Section 1741. However, indemnification is
not provided under Section 1742 in respect of any claim, issue or matter as to
which a Representative has been
II-2
<PAGE>
adjudged to be liable to the corporation unless and only to the extent that the
proper court determines upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, a Representative is
fairly and reasonably entitled to indemnity for the expenses that the court
deems proper.
Section 1743 provides that indemnification against expenses is
mandatory to the extent that a Representative has been successful on the merits
or otherwise in defense of any such action or proceeding referred to in Section
1741 or 1742.
Section 1744 provides that unless ordered by a court, any
indemnification under Section 1741 or 1742 shall be made by the corporation only
as authorized in the specific case upon a determination that indemnification of
a Representative is proper because the Representative met the applicable
standard of conduct, and such determination will be made by the board of
directors by a majority vote of a quorum of directors not parties to the action
or proceeding; if a quorum is not obtainable or if obtainable and a majority of
disinterested directors so directs, by independent legal counsel; or by the
shareholders.
Section 1745 provides that expenses incurred by a Representative in
defending any action or proceeding referred to in Subchapter D of Chapter 17 of
the BCL may be paid by the corporation in advance of the final disposition of
such action or proceeding upon receipt of an undertaking by or on behalf of the
Representative to repay such amount if it shall ultimately be determined that he
is not entitled to be indemnified by the corporation.
Section 1746 provides generally that except in any case where the act
or failure to act giving rise to the claim for indemnification is determined by
a court to have constituted willful misconduct or recklessness, the
indemnification and advancement of expenses provided by Subchapter D of Chapter
17 of the BCL shall not be deemed exclusive of any other rights to which a
Representative seeking indemnification or advancement of expenses may be
entitled under any bylaw, agreement, vote of shareholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding that office and that the corporation
may create a fund or otherwise secure or insure its indemnification obligations,
whether arising by law or otherwise.
Section 1747 grants a corporation the power to purchase and maintain
insurance on behalf of any Representative against any liability incurred by him
in his capacity as a Representative, whether or not the corporation would have
the power to indemnify him against that liability under Subchapter D of Chapter
17 of the BCL.
Sections 1748 and 1749 apply the indemnification and advancement of
expenses provisions contained in Subchapter D of Chapter 17 of the BCL to
successor corporations resulting from consolidation, merger or division and to
service as a representative of a corporation or an employee benefit plan.
II-3
<PAGE>
Section 1750 provides that the indemnification and advancement of
expenses provided by, or granted pursuant to, Subchapter D of Chapter 17 of the
BCL shall, unless otherwise provided when authorized or ratified, continue as to
a person who has ceased to be a Representative and shall inure to the benefit of
the heirs and personal representatives of such Representative.
The Bylaws provide that the Registrant shall, to the fullest extent
permitted by Pennsylvania law, indemnify and hold harmless each director or
officer of the Registrant who was or is a party to, or is threatened to be made
a party to, or is otherwise involved in, any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative,
investigative or through arbitration (each being a "Proceeding"), for all
actions taken by him or her and for all failures to take action. Indemnitees
shall be indemnified and held harmless against all expense, liability and loss,
including without limitation attorneys' fees, judgments, fines, taxes, penalties
and amounts paid or to be paid in settlement, reasonably incurred or suffered by
such indemnitee in connection with a Proceeding; provided, however, that no
indemnification shall be made in any case where the act or failure to act giving
rise to the claim of indemnification is determined by a court to have
constituted willful misconduct or recklessness. Such right to indemnification
includes the right to have expenses incurred by the indemnitee in defending any
Proceeding to be paid by the Registrant in advance of the final disposition
thereof, provided that if Pennsylvania law so requires such payment shall only
be made upon receipt from the indemnitee of an undertaking to repay advanced
amounts without interest if it is ultimately determined that the indemnitee is
not entitled to indemnification. The Bylaws further provide that
indemnification shall continue as to an indemnitee who has ceased to be a
director or officer and shall inure to the benefit of his or her heirs,
executors and administrators.
The Bylaws authorize the Registrant to purchase and maintain insurance
to insure its indemnification obligations, whether arising under the Bylaws or
otherwise. The Registrant may create a fund or otherwise secure its
indemnification obligations which arise under the Bylaws, the Registrant's
Articles of Incorporation, by agreement, vote of shareholders or directors, or
otherwise. The Registrant has purchased directors' and officers' liability
insurance.
The Bylaws provide that provisions relating to indemnification and the
advancement of expenses shall constitute a contract between the Registrant and
the indemnitee, and that any repeal or amendment of such provisions adverse to
such directors and officers shall apply only on a prospective basis and shall
not limit such rights with respect to any act or failure to act prior to such
repeal or amendment. Any such repeal or amendment which reduces the limitation
of liability or indemnification or advancement of expenses must be adopted by
the unanimous vote of the directors of the affirmative vote of a majority of the
votes that shareholders are entitled to cast in the election of directors. The
Bylaws also provide in the event of a change in Pennsylvania law which expands
the liability
II-4
<PAGE>
of directors or limits rights of indemnification or advancement of expenses,
such rights to limitation of liability, indemnification and advancement of
expenses shall continue to the fullest extent provided by law, and that if such
change in law limits further the liability of directors or provides broader
rights to indemnification or the advancement of expenses, the limitations of
liability and rights to indemnification and advancement of expenses shall be
broadened to the extent permitted by law.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not Applicable.
Item 8. Exhibits.
--------
The following Exhibits are filed as part of this Registration
Statement:
Exhibit No.
----------
4 The Bon-Ton Stores, Inc. Performance Based Stock
Incentive Plan for Heywood Wilansky.
5 Opinion of Wolf, Block, Schorr and Solis-Cohen LLP.
23.1 Consent of Arthur Andersen LLP, independent public
accountants.
23.2 Consent of Wolf, Block, Schorr and Solis-Cohen LLP
(contained in Exhibit 5).
24 Power of Attorney (included on signature page of this
Registration Statement).
Item 9. Undertakings.
------------
The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
II-5
<PAGE>
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in this Registration
Statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which is registered) and any deviation from the low or high of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b), if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
provided, however, that paragraphs (a)(l)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this Registration
Statement.
2. That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the Registrant's
annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in this Registration Statement shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a
II-6
<PAGE>
director, officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
II-7
<PAGE>
SIGNATURES AND POWER OF ATTORNEY
--------------------------------
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of York, Pennsylvania, on this 6th day of July, 1998.
THE BON-TON STORES, INC.
By: /s/ Heywood Wilansky
------------------------------------------------
Heywood Wilansky
President and Chief
Executive Officer
We, the undersigned officers and directors of THE BON-TON STORES, INC.,
hereby severally constitute and appoint each of Heywood Wilansky and Michael L.
Gleim, signing singly, our lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for us and in our stead, in any and all
capacities, to sign any and all amendments to this Registration Statement and
all documents relating thereto, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing necessary or advisable
to be done in and about the premises, as fully to all intents and purposes as
the undersigned might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents may lawfully do or cause to be done by
virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Heywood Wilansky President, Chief Executive Officer July 6, 1998
- --------------------------------
Heywood Wilansky and Director
/s/ M. Thomas Grumbacher Chairman of the Board of Directors July 6, 1998
- --------------------------------
M. Thomas Grumbacher
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Michael L. Gleim Vice Chairman, Chief Operating July 6, 1998
- ---------------------------------
Michael L. Gleim Officer and Director
/s/ Samuel J. Gerson Director July 6, 1998
- ----------------------------------
Samuel J. Gerson
/s/ Lawrence J. Ring Director July 6, 1998
- -----------------------------------
Lawrence J. Ring
/s/ Leon D. Starr Director July 6, 1998
---------------------------------
Leon D. Starr
/s/ Leon F. Winbigler Director July 6, 1998
- ----------------------------------
Leon F. Winbigler
/s/ James H. Baireuther Senior Vice President, July 6, 1998
- --------------------------------
James H. Baireuther Chief Financial Officer
and Chief Accounting Officer
</TABLE>
<PAGE>
THE BON-TON STORES, INC.
PERFORMANCE BASED STOCK INCENTIVE PLAN
FOR HEYWOOD WILANSKY
REGISTRATION STATEMENT ON FORM S-8
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No.
- -----------
<C> <S>
4 The Bon-Ton Stores, Inc. Performance Based Stock Incentive Plan for
Heywood Wilansky.
5 Opinion of Wolf, Block, Schorr and Solis-Cohen LLP.
23.1 Consent of Arthur Andersen LLP, independent public accountants.
23.2 Consent of Wolf, Block, Schorr and Solis-Cohen LLP (contained in
Exhibit 5).
24 Power of Attorney (included on signature page in Part II of this
Registration Statement).
</TABLE>
<PAGE>
Exhibit 4
THE BON-TON STORES, INC.
PERFORMANCE BASED STOCK INCENTIVE PLAN
FOR HEYWOOD WILANSKY
1. PURPOSE
-------
The Bon-Ton Stores, Inc. Performance Based Stock Incentive Plan for
Heywood Wilansky, as set forth herein, is established by the Committee (as
hereinafter defined), along with the performance goals required to be satisfied
for the payment of any stock bonus under the terms of the Plan, and is adopted
by the Board of Directors, subject to the approval of the shareholders of the
Bon-Ton Stores, Inc., a Pennsylvania corporation (the "Company"), for the
purpose of providing performance-based compensation to Heywood Wilansky (the
"Participant") in the form of stock bonuses granted in connection with services
to be provided by the Participant during the term of the Plan in accordance with
a formula that is based on the financial success of the Company as part of an
integrated compensation program which is intended to assist the Company in
motivating and retaining employees of superior ability, industry and loyalty.
2. DEFINITIONS
-----------
The following words and phrases as used herein shall have the
following meanings, unless a different meaning is plainly required by the
context:
"Award" shall mean an award of shares of Company Stock subject to
forfeiture if the performance goals set forth in the Plan are not satisfied, and
subject further to the restrictions contained in the vesting schedule set forth
in the Plan.
"Board of Directors" shall mean the Board of Directors of the Company.
"Cause" shall have the meaning set forth in the Participant's
Employment Agreement in effect as of the date the Plan is adopted.
"Change of Control" shall have the meaning set forth in the
Participant's Employment Agreement in effect as of the date the Plan is adopted.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Committee" shall mean the Compensation Committee of the Board of
Directors, consisting of two or more Outside Directors, to act as the Committee
with respect to the Plan, or
<PAGE>
such other committee as may be appointed by the Board of Directors to act as the
Committee with respect to the Plan.
"Company" shall mean the Bon-Ton Stores, Inc., a Pennsylvania
corporation, and any successor thereto.
"Company's Accountants" shall mean the certified public accountants
charged with the responsibility for determining the Company's earnings for the
relevant fiscal year for purposes of the disclosure of such information as may
be required under applicable law or under such rules as may be applicable to the
Company in connection with any public filings or in connection with the listing
of the Company's securities on any securities exchange.
"Company Stock" shall mean the Company's Common Stock, par value $.01
per share.
"Designated Beneficiary" shall mean the person, if any, specified in
writing by the Participant to receive any payments due to the Participant in the
event of the Participant's death. In the event no person is specified by the
Participant, the Participant's estate shall be deemed to be the Designated
Beneficiary.
"Effective Date" shall mean February 1, 1998.
"Outside Director" shall mean a member of the Board of Directors who
is treated as an "outside director" for purposes of Code Section 162(m).
"Option" shall mean a grant of an option to acquire shares of Company
Stock, subject to forfeiture if the performance goals set forth in the Plan are
not satisfied and subject further to the restrictions contained in the vesting
schedule set forth in the Plan. The Option granted under the Plan is not
intended to be an "incentive stock option" as that term is used for purposes of
Code Section 422.
"Participant" shall mean Heywood Wilansky.
"Plan" shall mean the Bon-Ton Stores, Inc. Performance Based Stock
Incentive Plan for Heywood Wilansky.
"Plan Year" shall mean the taxable year of the Company. The first
Plan Year shall be the taxable year of the Company that commenced on or about
February 1, 1998.
2
<PAGE>
3. PARTICIPATION
-------------
Heywood Wilansky shall be the sole Participant in the Plan.
4. TERM OF PLAN
------------
Subject to approval of the Plan by the shareholders of the Company,
the Plan shall be in effect as of the Effective Date and shall continue until
terminated by the Board of Directors.
5. COMPANY STOCK AWARD AND OPTIONS
-------------------------------
(a) Restricted Stock Award. The Company shall award to the
----------------------
Participant 250,000 shares of Company Stock, subject to the risk of forfeiture
based on Company performance and subject further to the vesting schedule set
forth in Section 6 of the Plan, as soon as practicable following shareholder
approval of the Plan. Issuance of shares may, with the consent of the
Participant, be deferred until an appropriate filing is made with the Securities
and Exchange Commission registering the shares that may be granted under the
Plan.
(b) Option Grant. On or shortly following the Effective Date, the
------------
Company shall grant to the Participant the Option, which shall be an option to
acquire 250,000 shares of Company Stock (the "Shares"), subject to the risks of
forfeiture based on Company performance and subject further to the vesting
schedule set forth in Section 6 of the Plan. The Option shall have an exercise
price (the "Option Price") of $8.00 per share of Company Stock, and shall expire
on the day before the tenth anniversary of the Effective Date, unless the Option
shall have terminated or been forfeited prior to such date under the terms of
the Plan or would have terminated or been forfeited prior to such date under the
terms of the Bon-Ton Stores, Inc. Amended and Restated 1991 Stock Option and
Restricted Stock Plan if the Option were subject to such plan. The Option shall
also be subject to the following terms:
(i) Exercise. The Option shall not be deemed to have been exercised
--------
prior to the receipt by the Company of written notice of such exercise and of
payment in full of the Option Price for the Shares to be purchased. Each such
notice shall specify the number of Shares to be purchased and shall (unless the
Shares are covered by a then current registration statement or a Notification
under Regulation A under the Securities Act of 1933, as amended (the "Act")),
contain the Participant's acknowledgment in form and substance satisfactory to
the Company that (i) such Shares are being purchased for investment and not for
distribution or resale (other than a distribution or resale which, in the
opinion of counsel satisfactory to the Company, may be made without violating
the registration provisions of the Act), (ii) the Participant has been advised
and understands that (A) the Shares have not been registered under the Act and
are "restricted securities" within the meaning of Rule 144 under the Act and are
subject to restrictions on transfer and (B) the Company is under no obligation
to register the Shares under the Act or to take any action which would make
available to the Optionee any exemption from such registration, (iii) such
Shares may not be transferred without compliance
3
<PAGE>
with all applicable federal and state securities laws, and (iv) an appropriate
legend referring to the foregoing restrictions on transfer and any other
restrictions imposed under the Option Documents may be endorsed on the
certificates. Notwithstanding the foregoing, if the Company determines that
issuance of Shares should be delayed pending (I) registration under federal or
state securities laws, (II) the receipt of an opinion that an appropriate
exemption from such registration is available, (III) the listing or inclusion of
the Shares on any securities exchange or in an automated quotation system or
(IV) the consent or approval of any governmental regulatory body whose consent
or approval is necessary in connection with the issuance of such Shares, the
Company may defer exercise of the Option granted hereunder until any of the
events described herein.
(ii) Medium of Payment. The Participant shall pay for Shares (i) in
-----------------
cash, (ii) by certified check payable to the order of the Company, or (iii) by
such other mode of payment as the Committee may approve, including payment
through a broker in accordance with procedures permitted by Regulation T of the
Federal Reserve Board. Furthermore, the Committee may permit, at its
discretion, that payment may be made in whole or in part in shares of Company
Stock held by the Participant for at least six months. If payment is made in
whole or in part in shares of Company Stock, then the Participant shall deliver
to the Company certificates registered in his name representing the shares owned
by him, free of all liens, claims and encumbrances of every kind and having an
aggregate Fair Market Value (as defined below) on the date of delivery that is
at least as great as the Option Price of the Shares (or relevant portion
thereof) with respect to which the Option is to be exercised by the payment in
shares of Company Stock, accompanied by stock powers duly endorsed in blank by
the Participant. For these purposes, Fair Market Value means the last reported
sale price of a share of Company Stock on the relevant date, if Company Stock is
traded in a public market, or, if no such sale price is reported, the mean
between the last reported "bid" and "asked" prices for a shares of Company Stock
as reported on NASDAQ shall be used, or, if not so reported, as reported by the
National Daily Quotation Bureau, Inc., or as reported in a customary financial
reporting service, as applicable, and as the Committee determines, on the
relevant date. If the Company Stock is not traded in a public market on the
relevant date, the Fair Market Value shall be as determined in good faith by the
Committee. Notwithstanding the foregoing, the Committee may impose from time to
time such limitations and prohibitions on the use of shares of Company Stock to
exercise the Option as it deems appropriate.
(iii) Termination of Options. The Option shall terminate
----------------------
after the first to occur of the following:
(A) The tenth anniversary of the Effective Date.
(B) Expiration of ninety (90) days from the date the
Participant's employment with the Company terminates for any reason other than
disability (as defined in the Company's long term disability plan, if any, or
otherwise by reference to eligibility for federal social security disability
benefits) or death;
4
<PAGE>
(C) Expiration of one year from the date the Participant's
employment with the Company or its Affiliates terminates due to his disability
or death;
(D) The date that the Participant's employment with the
Company terminates at any time prior to January 31, 2003 on account of the
Participant's resignation or on account of the termination of his employment by
the Company for Cause; or
(E) The date, if any, set by the Board of Directors as an
accelerated expiration date in connection with a Change of Control of the
Company.
Notwithstanding the foregoing, the Committee may extend the period during which
the Option may be exercised to a date no later than the tenth anniversary of the
Effective Date.
(iv) Transfers. The Option may not be transferred, except by will or
---------
by the laws of descent and distribution. During the lifetime of the
Participant, the Option may be exercised only by him. Notwithstanding the
foregoing, the Option may be transferred pursuant to the terms of a "qualified
domestic relations order," within the meaning of sections 401(a)(13) and 414(p)
of the Code or within the meaning of Title I of the Employee Retirement Income
Security Act of 1974, as amended.
(v) Amendment. The Committee shall have the right to amend the
---------
Option, subject to the Participant's consent if such amendment is not favorable
to the Optionee.
(c) Adjustments on Changes in Capitalization. The aggregate number of
----------------------------------------
Shares and class of Shares subject to the Option shall be appropriately adjusted
in the event of a stock dividend, stock split, recapitalization or other change
in the number or class of issued and outstanding equity securities of the
Company resulting from a subdivision or consolidation affecting the Company
Stock subject to the Option. The Committee shall have the authority to
determine the adjustments to be made hereunder, and any such determination by
the Committee shall be final, binding and conclusive.
6. PERFORMANCE GOALS, FORFEITURES AND VESTING
------------------------------------------
(a) Performance Goal Requirement. If the net after tax earnings of
----------------------------
the Company for the first Plan Year, as determined by the Company's Accountants,
is not at least equal to $3,000,000, as certified in writing by the Committee,
the shares of Company Stock and the Option granted to the Participant pursuant
to Section 5 of the Plan shall be forfeited, and the Participant shall have no
further rights to any benefits under the terms of the Plan.
5
<PAGE>
(b) Vesting Schedule.
----------------
(i) General Vesting Schedule.
------------------------
(A) Award: If the Participant has not forfeited the shares of Company
Stock granted under the Plan by reason of a failure to meet the performance goal
set forth in Section 6(a) of the Plan, the Participant shall become fully vested
in the shares of Company Stock granted under the Plan, and such shares of
Company Stock shall be freely transferable, subject to such limitations as may
be imposed under applicable law or governmental regulations, in three annual
installments on the last day of the Company's fiscal year which occurs on or
about the third, fourth and fifth anniversaries of the Effective Date in the
amount of 83,334, 83,333 and 83,333 shares of Company Stock respectively.
(B) Option: If the Participant has not forfeited the Option by reason
of a failure to meet the performance goal set forth in Section 6(a) of the Plan,
the Option shall become vested and the Participant shall be able to exercise the
Option in three annual installments (with respect to 83,334, 83,333 and 83,333
Shares respectively) on the day before the first, second and third anniversaries
of the Effective Date.
(ii) Special Vesting Schedule. If the Participant has not forfeited
------------------------
the shares of Company Stock granted under the Plan or the Option by reason of a
failure to meet the performance goal set forth in Section 6(a) of the Plan, the
Participant shall become fully vested in all of the shares of Company Stock
granted under the Plan and in the Option, and the Option shall be fully
exercisable if, at any time following the date the performance goal set forth in
Section 6(a) of the Plan is satisfied, the Participant is discharged without
Cause or if there is a Change of Control.
7. COMMITTEE
---------
(a) Powers. The Committee shall have the power and duty to do all
------
things necessary or convenient to effect the intent and purposes of the Plan and
not inconsistent with any of the provisions hereof, whether or not such powers
and duties are specifically set forth herein, and, by way of amplification and
not limitation of the foregoing, the Committee shall have the power to:
(i) provide rules and regulations for the management, operation and
administration of the Plan, and, from time to time, to amend or supplement such
rules and regulations;
(ii) construe the Plan, which construction, as long as made in good
faith, shall be final and conclusive upon all parties hereto; and
(iii) correct any defect, supply any omission, or reconcile any
inconsistency in the Plan in such manner and to such extent as it shall deem
expedient to carry
6
<PAGE>
the same into effect, and it shall be the sole and final judge of when such
action shall be appropriate.
The resolution of any questions with respect to payments and entitlements
pursuant to the provisions of the Plan shall be determined by the Committee, and
all such determinations shall be final and conclusive.
(b) Indemnity. No member of the Committee shall be directly or
---------
indirectly responsible or under any liability by reason of any action or default
by him as a member of the Committee, or the exercise of or failure to exercise
any power or discretion as such member. No member of the Committee shall be
liable in any way for the acts or defaults of any other member of the Committee,
or any of its advisors, agents or representatives. The Company shall indemnify
and save harmless each member of the Committee against any and all expenses and
liabilities arising out of his own membership on the Committee.
(c) Compensation and Expenses. Members of the Committee shall receive
-------------------------
no separate compensation for services other than compensation for their
services as members of the Board of Directors, which compensation can include
compensation for services at any committee meeting attended in their capacity as
members of the Board of Directors. Members of the Committee shall be entitled
to receive their reasonable expenses incurred in administering the Plan. Any
such expenses, as well as extraordinary expenses authorized by the Company,
shall be paid by the Company.
(d) Participant Information. The Company shall furnish to the
-----------------------
Committee in writing all information the Company deems appropriate for the
Committee to exercise its powers and duties in administration of the Plan. Such
information shall be conclusive for all purposes of the Plan and the Committee
shall be entitled to rely thereon without any investigation thereof; provided,
however, that the Committee may correct any errors discovered in any such
information.
(e) Inspection of Documents. The Committee shall make available to
-----------------------
the Participant and his Designated Beneficiary, for examination at the principal
office of the Company (or at such other location as may be determined by the
Committee), a copy of the Plan and such of its records, or copies thereof, as
may pertain to the benefits of the Participant and beneficiary under the Plan.
8. EFFECTIVE DATE, TERMINATION AND AMENDMENT
-----------------------------------------
(a) Effective Date of Participation in Plan. Subject to shareholder
---------------------------------------
and Committee approval of the Plan, participation in this Plan shall be
effective as of February 1, 1998 and shall continue thereafter for the term of
the Plan.
(b) Amendment and Termination of the Plan. The Plan may be
-------------------------------------
terminated or revoked by the Company at any time and amended by the Company from
time to time, provided that
7
<PAGE>
neither the termination, revocation or amendment of the Plan may, without the
written approval of the Participant, reduce the amount of the benefit to which
the Participant would otherwise be entitled, and provided further that no
changes that would increase the value of the benefit to which the Participant is
entitled under the terms of the Plan shall be effective without approval by the
Committee and without disclosure to and approval by the shareholders of the
Company in a separate vote prior to the effective date of any such change. In
addition, the Plan may be modified or amended by the Committee, as it deems
appropriate, in order to comply with any rules, regulations or other guidance
promulgated by the Internal Revenue Service with respect to applicable
provisions of the Code, as they relate to the exemption for "performance-based
compensation" under the limitations on the deductibility of compensation imposed
under Code Section 162(m).
9. MISCELLANEOUS PROVISIONS
------------------------
(a) Unsecured Creditor Status. The Participant, if entitled to a
-------------------------
bonus payment hereunder, shall rely solely upon the unsecured promise of the
Company, as set forth herein, for the payment thereof, and nothing herein
contained shall be construed to give to or vest in the Participant or any other
person now or at any time in the future, any right, title, interest, or claim in
or to any specific asset, fund, reserve, account, insurance or annuity policy or
contract, or other property of any kind whatever owned by the Company, or in
which the Company may have any right, title, or interest, now or at any time in
the future.
(b) Other Company Plans. It is agreed and understood that any
-------------------
benefits under this Plan are in addition to any and all benefits to which the
Participant may otherwise be entitled under any other contract, arrangement, or
voluntary pension, profit sharing or other compensation plan of the Company,
whether funded or unfunded, and that this Plan shall not affect or impair the
rights or obligations of the Company or the Participant under any other such
contract, arrangement, or voluntary pension, profit sharing or other
compensation plan.
(c) Separability. If any term or condition of the Plan shall be
------------
invalid or unenforceable to any extent or in any application, then the remainder
of the Plan, with the exception of such invalid or unenforceable provision,
shall not be affected thereby, and shall continue in effect and application to
its fullest extent.
(d) Continued Employment. Neither the establishment of the Plan, any
--------------------
provisions of the Plan, nor any action of the Committee shall be held or
construed to confer upon the Participant the right to a continuation of
employment by the Company. The Company reserves the right to dismiss any
employee (including the Participant), or otherwise deal with any employee
(including the Participant) to the same extent as though the Plan had not been
adopted.
(e) Incapacity. If the Committee determines that the Participant or
----------
Beneficiary is unable to care for his affairs because of illness or accident, or
is a minor, any benefit due the Participant or Beneficiary under the Plan may be
paid to his spouse, child, parent, or any other person deemed by the Committee
to have incurred expense for the Participant or
8
<PAGE>
Beneficiary (including a duly appointed guardian, committee, or other legal
representative), and any such payment shall be a complete discharge of the
Company's obligation hereunder.
(f) Jurisdiction. The Plan shall be construed, administered, and
------------
enforced according to the laws of the Commonwealth of Pennsylvania, except to
the extent that such laws are preempted by the Federal laws of the United States
of America.
(g) Claims. If, pursuant to the provisions of the Plan, the Committee
------
denies the claim of the Participant for benefits under the Plan, the Committee
shall provide written notice, within 60 days after receipt of the claim, setting
forth in a manner calculated to be understood by the claimant:
(i) the specific reasons for such denial;
(ii) the specific reference to the Plan provisions on which the
denial is based;
(iii) a description of any additional material or information
necessary to perfect the claim and an explanation of why such material or
information is needed; and
(iv) an explanation of the Plan's claim review procedure and the
time limitations of this subsection applicable thereto.
If the Participant's claim for benefits has been denied, the Participant may
request review by the Committee of the denied claim by notifying the Committee
in writing within 60 days after receipt of the notification of claim denial. As
part of said review procedure, the claimant or his authorized representative may
review pertinent documents and submit issues and comments to the Committee in
writing. The Committee shall render its decision to the claimant in writing in
a manner calculated to be understood by the claimant not later than 60 days
after receipt of the request for review, unless special circumstances require an
extension of time, in which case a decision shall be rendered as soon after the
sixty-day period as possible, but not later than 120 days after receipt of the
request for review. The decision on review shall state the specific reasons
therefor and the specific Plan references on which it is based.
(h) Withholding. The Participant or the Designated Beneficiary shall
-----------
make appropriate arrangements with the Company for satisfaction of any federal,
state or local income tax withholding requirements and Social Security or other
tax requirements applicable to the accrual or payment of benefits under the
Plan. If no other arrangements are made, the Company may provide, at its
discretion, for any withholding and tax payments as may be required.
(i) Interpretation. The Plan is intended to pay compensation only on
--------------
the attainment of the performance goals set forth above in a manner that will
exempt such compensation from the limitations on the deduction of certain
compensation payments under Code Section 162(m). To the extent that any
provision of the Plan would cause a conflict with the conditions required for
such an exemption or would cause the administration of the Plan to fail to
satisfy the applicable requirements for the performance-based compensation
exemption under Code Section 162(m), such provision shall be deemed null and
void to the extent permitted
9
<PAGE>
by applicable law. In addition, the Plan is intended to enable transactions
under the Plan to satisfy the conditions of Rule 16b-3 promulgated by the
Securities and Exchange Commission under the Securities Exchange Act of 1934, as
amended, and any provision of the Plan which would cause a conflict with such
conditions shall be deemed null and void to the extent permitted by applicable
law and in the discretion of the Committee.
10
<PAGE>
Exhibit 5
LAW OFFICES
WOLF, BLOCK, SCHORR AND SOLIS-COHEN LLP
TWELFTH FLOOR PACKARD BUILDING
111 SOUTH FIFTEENTH STREET
PHILADELPHIA, PA 19102-2678
(215) 977-2000
FACSIMILE: (215) 977-2334
July 6, 1998
The Bon-Ton Stores, Inc.
2801 East Market Street
York, PA 17402
RE: Registration Statement on Form S-8
Relating to The Bon-Ton Stores, Inc.
Performance Based Stock Incentive Plan for Heywood Wilansky
-----------------------------------------------------------
Gentlemen:
As counsel to The Bon-Ton Stores, Inc., a Pennsylvania corporation
(the "Company"), we have assisted in the preparation of a Registration Statement
on Form S-8 (the "Registration Statement") to be filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, relating to
500,000 shares of the Company's Common Stock, $0.01 par value (the "Common
Stock"), that may be issued under The Bon-Ton Stores, Inc. Performance Based
Stock Incentive Plan for Heywood Wilansky (the "Plan").
In this connection, we have examined the Company's Articles of
Incorporation and Bylaws, the Plan and such other documents and corporate
records relating to the Company and the issuance of Common Stock as we have
deemed appropriate. In all examinations of documents, instruments and other
papers, we have assumed the genuineness of all signatures on original and
certified documents and the conformity with original and certified documents of
all copies submitted to us as conformed, photostatic or other copies. As to
matters of fact which have not been independently established, we have relied
upon representations of officers of the Company.
Based upon the foregoing, it is our opinion that the shares of Common
Stock offered and to be offered under the Plan are duly authorized and, when
issued and sold pursuant to the terms of the Plan, will be legally issued, fully
paid and non-assessable.
<PAGE>
The Bon-Ton Stores, Inc.
July 6, 1998
Page 2
We hereby expressly consent to the inclusion of this opinion as an
exhibit to the Registration Statement.
Very truly yours,
/s/ Wolf, Block, Schorr and Solis-Cohen LLP
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated March 4, 1998
included in or incorporated by reference in The Bon-Ton Stores, Inc's. Form 10-K
for the year ended January 31, 1998 and to all references to our Firm included
in this registration statement.
/s/ ARTHUR ANDERSEN LLP
Philadelphia, PA
July 6, 1998
