<PAGE> 1
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.
2000 STOCK INCENTIVE PLAN
(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
1650 Arch Street, 22nd Floor
Philadelphia, PA 19103-2097
(215) 977-2012
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Proposed Proposed
Securities to Maximum Maximum Amount of
be Amount to be Offering Price Aggregate Registration
Registered Registered(1) Per Share Offering Price Fee
---------- ------------- ----------- -------------- -------------
<S> <C> <C> <C> <C>
Common Stock, 400,000 shares $ (2) $ (2) $54.40
$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 $2.0625 per share, or the average of
the high and low prices for the Common Stock on September 25, 2000 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 $825,000 with respect
to such shares.
<PAGE> 3
1
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 29, 2000.
2. The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarters ended April 29, 2000 and July 29, 2000.
3. The Registrant's Current Report on Form 8-K dated June 27,
2000.
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.
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2
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. Two partners of that firm, Henry F. Miller and David R. Glyn, are
trustees of certain trusts for the benefit of the children of M. Thomas
Grumbacher, Chairman of the Board of Directors and Chief Executive Officer and
the controlling shareholder of the Registrant. Such trusts own in the aggregate
821,504 shares of Common Stock and 545,237 shares of the Company's Class A
Common Stock, $0.01 par value per share. Mr. Miller is also a trustee of a trust
for the benefit of Mr. Grumbacher's children which owns 24,950 shares of Common
Stock, and Mr. Glyn is a trustee of a trust for the benefit of Mr. Grumbacher's
grandchild which owns 5,000 shares of Common Stock. In addition, David J.
Kaufman, a retired partner of Wolf, Block, Schorr and Solis-Cohen LLP, is one of
three directors of The Grumbacher Family Foundation, 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.
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3
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 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.
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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.
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
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5
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 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:
<TABLE>
<CAPTION>
Exhibit No.
-----------
<S> <C>
4 The Bon-Ton Stores, Inc. 2000 Stock Incentive
Plan (incorporated by reference to Exhibit 10.2
of the Registrant's Quarterly Report on Form 10-Q
for the quarter ended July 29, 2000).
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>
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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) 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 the 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 a 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.
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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 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.
<PAGE> 10
8
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 29th day of September,
2000.
THE BON-TON STORES, INC.
By:/s/ M. Thomas Grumbacher
------------------------
Chairman of the Board of Directors
and Chief Executive Officer
We, the undersigned officers and directors of THE BON-TON STORES, INC.,
hereby severally constitute and appoint each of M. Thomas Grumbacher 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/ M. Thomas Grumbacher Chairman of the Board of Directors September 29, 2000
------------------------ and Chief Executive Officer
M. Thomas Grumbacher
</TABLE>
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<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Michael L. Gleim Vice Chairman, Chief Operating September 29, 2000
---------------------- Officer and Director
Michael L. Gleim
/s/ Samuel J. Gerson Director September 29, 2000
----------------------
Samuel J. Gerson
/s/ Lawrence J. Ring Director September 29, 2000
----------------------
Lawrence J. Ring
/s/ Robert C. Siegel Director September 29, 2000
----------------------
Robert C. Siegel
/s/ Leon D. Starr Director September 29, 2000
----------------------
Leon D. Starr
/s/ Frank Tworecke Vice Chairman, Chief September 29, 2000
---------------------- Merchandising Officer and
Frank Tworecke Director
/s/ Leon F. Winbigler Director September 29, 2000
----------------------
Leon F. Winbigler
/s/ Thomas W. Wolf Director September 29, 2000
----------------------
Thomas W. Wolf
/s/ James H. Baireuther Executive Vice President and September 29, 2000
----------------------- Chief Financial Officer
James H. Baireuther (principal financial
and accounting officer)
</TABLE>
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THE BON-TON STORES, INC.
2000 STOCK INCENTIVE PLAN
REGISTRATION STATEMENT ON FORM S-8
EXHIBIT INDEX
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------
Exhibit No.
--------------------------------------------------------------------------------
<S> <C>
4 The Bon-Ton Stores, Inc. 2000 Stock Incentive Plan
(incorporated by reference to Exhibit 10.2 of the Registrant's
Quarterly Report on Form 10-Q for the quarter ended July 29,
2000).
--------------------------------------------------------------------------------
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>
