RESTRICTED STOCK
AGREEMENT
PERFORMANCE SHARES
This is a Restricted Stock Agreement —
Performance Shares dated as of February 2, 2009
(“Agreement”), between The Bon-Ton Stores, Inc. (the
“Company”) and the undersigned (“Grantee”).
This Agreement is entered into pursuant to the provisions of the
Plan (as defined below) and in connection with a certain employment
agreement entered into by and between the Grantee and the Company
as of February 1, 2009, (the employment agreement, including
all amendments thereto being referred to herein as the
“Employment Agreement”). This Agreement is intended to
be consistent with the Employment Agreement and specifically those
provisions of the Employment Agreement regarding
“Performance-Based Award of Restricted Shares” and
shall be so interpreted. To the extent any provision hereof is
inconsistent with the provisions of the Employment Agreement, the
provisions of the Employment Agreement shall be given effect. To
the extent the definition of any terms defined in the Employment
Agreement is modified from time to time by amendments made to the
Employment Agreement, the definition as in effect at the relevant
time shall apply for purposes of this Agreement. All determinations
regarding the vesting of Restricted Stock hereunder shall be made
by the Committee (as that term is defined in the Plan) consistent
with the Plan’s provisions regarding performance-based
compensation.
1. Definitions . As used
herein:
(a) “ Date of Grant ”
means February 2, 2009, the date on which the Company awarded
the Restricted Stock.
(b) “ Forfeiture Date ”
means any date as of which Grantee’s rights to all or any
portion of the Restricted Stock are forfeited pursuant to
applicable provisions of this Agreement.
(c) “ Plan ” means The
Bon-Ton Stores, Inc. Amended and Restated 2000 Stock Incentive and
Performance-Based Award Plan, as amended from time to
time.
(d) “ Restricted Period
” with respect to any shares of Restricted Stock means the
period beginning on the Date of Grant and ending on the Vesting
Date for such shares.
(e) “ Vesting Date ”
with respect to any shares of Restricted stock means the date set
as a vesting date pursuant to Paragraph 2 hereof, or such
earlier vesting date as is otherwise provided herein.
All other capitalized terms used herein shall
have the meaning set forth in the Employment Agreement or in the
Plan except to the extent the context clearly requires otherwise.
This Agreement is intended to be consistent with the terms of the
Plan and is subject in all regards to the terms of the Plan. In the
event of any inconsistency in the definition contained in the
Employment Agreement and that contained in the Plan, the definition
in the Employment Agreement shall control.
2. Grant of Restricted Stock .
Subject to the terms and conditions set forth herein and in the
Plan, the Company grants to Grantee seventy thousand (70,000)
shares of the Company’s Common Stock, par value $.01 (the
“Restricted Stock”). Of the Restricted Stock subject to
this Agreement, fifty percent (50%) is subject to vesting (or
forfeiture) on the basis of the achievement of certain performance
goals to be established for the Company’s 2009 fiscal year
(i.e., the fiscal year ending January 30, 2010), and the
remaining fifty percent (50%) is subject to vesting (or forfeiture)
on the basis of the achievement of performance goals to be
established for the Company’s 2010 fiscal year (i.e., the
fiscal year ending January 29, 2011). The two portions of the
Restricted Stock are referred to herein as the “2009
Performance Shares Based Upon Company Performance For Fiscal Year
2009” and the “2009 Performance Shares Based Upon
Company Performance for Fiscal Year 2010,” respectively.
Except as otherwise provided herein, the Restricted Stock shall
vest (or be forfeited) as follows:
2009
Performance Shares Based Upon Company Performance For Fiscal Year
2009
One hundred
percent (100%) of the thirty-five thousand (35,000) 2009
Performance Shares Based Upon Company Performance For Fiscal Year
2009 become vested in the event the Company achieves the target
financial objectives set by the Committee for Fiscal Year 2009. The
Committee may also establish vesting for less than one hundred
percent of such shares based on achievement of financial objectives
below the target financial objective.
2009
Performance Shares Based Upon Company Performance For Fiscal Year
2010
One hundred
percent (100%) of the thirty-five thousand (35,000) 2009
Performance Shares Based Upon Company Performance For Fiscal Year
2010 become vested in the event the Company achieves the target
financial objectives set by the Committee for Fiscal Year 2010. The
Committee may also establish vesting for less than one hundred
percent of such shares based on achievement of financial objectives
below the target financial objective.
Termination
of Employment . Any
Restricted Stock that is not earned and vested on the effective
date of the Grantee’s termination of employment for any
reason shall be forfeited (if not already forfeited), subject to
the following:
(i) In the event that the Grantee, prior to
January 30, 2010 is discharged without Cause or resigns for
Good Reason, the 2009 Performance Shares Based Upon Company
Performance For Fiscal Year 2009 shall become vested to the extent
provided above based on attainment of the performance goals for the
Company’s 2009 fiscal year to the same extent such Restricted
Stock would have become vested had the Grantee remained employed
with the Company or an Affiliate of the Company through the date
that the Committee makes a determination regarding the achievement
of the performance targets described above for the Company’s
2009 fiscal year; provided, however, that no portion of the 2009
Performance Shares Based Upon Company Performance for Fiscal Year
2009 shall be vested in such a situation unless the Grantee
executes a general release as required under applicable provisions
of the Employment Agreement; and
2
(ii) In the event that the Grantee, on or
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