<PAGE> 1
As filed with the Securities and Exchange Commission on March 20, 1998
Registration No.
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
THE ELDER-BEERMAN STORES CORP.
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(Exact Name of Registrant as Specified in Its Charter)
Ohio 31-0271980
- ------------------------------------- ------------------------------------
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
3155 El-Bee Road, Dayton, Ohio 45439
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(Address of Principal Executive (Zip Code)
Offices)
THE ELDER-BEERMAN STORES CORP.
EMPLOYEE STOCK PURCHASE PLAN
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(Full Title of the Plans)
SCOTT J. DAVIDO, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
The Elder-Beerman Stores Corp.
3155 El-Bee Road
Dayton, Ohio 45439
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(Name and Address of Agent For Service)
(937) 296-2700
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(Telephone Number, Including Are Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===========================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
BE REGISTERED AMOUNT TO BE REGISTERED SHARE (1) PRICE (1) REGISTRATION FEE (1)
- --------------------------------------------------------------------------------------------------------------------------
Common Stock,
<S> <C> <C> <C> <C>
without par value 625,000 $20.625 $12,890,625 $3,802.73
=========================================================================================================================
</TABLE>
(1) Calculated in accordance with Rules 457(h)(1) and 457(c),
based on the average of the high and low sales prices reported
on the Nasdaq National Market System on March 17, 1998.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The information called for by Part I of this Registration Statement on
Form S-8 (the "Registration Statement") is included in the description of The
Elder-Beerman Stores Corp. Employee Stock Purchase Plan (the "Plan") to be
delivered to persons eligible to participate in the Plan. Pursuant to the Note
to Part I of Form S-8, this information is not being filed with or included in
this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents filed by The Elder-Beerman Stores Corp. (the
"Company") with the Securities and Exchange Commission are incorporated in this
Registration Statement by reference:
(a) the Company's Registration Statement on Form 10 (Commission
File No. 0-2788) filed on November 26, 1997, as amended by
Form 10/A-1 on January 23, 1998 and Form 10/A-2 on February
12, 1998 (the "Form 10");
(b) the Company's Current Report on Form 8-K dated January 29,
1998; and
(c) description of the Common Stock of the Company contained in
the Form 10, including any amendment filed for the purpose of
updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934, as amended, subsequent to
the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all securities offered 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
thereof from the date of filing of such documents.
Any statement made in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which is also
incorporated or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the Company's Common Stock to be issued in connection
with the Registration Statement will be passed upon by Scott J. Davido, Esq.,
Senior Vice President, General Counsel and Secretary of the Company. Mr. Davido
has options to purchase 21,000 shares of the Company's Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Division (E) of Section 1701.13 of the Ohio General Corporation Law
governs indemnification by a corporation and provides as follows:
(E) (1) A corporation may indemnify or agree to indemnify any
person who was or is a party, or is threatened to be made a party, to
any threatened, pending, or completed action, suit, or proceeding,
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whether civil, criminal, administrative, or investigative, other than
an action by or in the right of the corporation, by reason of the fact
that he is or was a director, officer, employee, or agent of the
corporation, or is or was serving at the request of the corporation as
a director, trustee, officer, employee, member, manager, or agent of
another corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture, trust or
other enterprise, against expenses, including attorney's fees,
judgments, fines, and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit, or
proceeding, 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 action or proceeding, if
he had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit, or proceeding by judgment, order,
settlement, or conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person
did not act 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 action or proceeding, he had reasonable cause
to believe that his conduct was unlawful.
(2) A corporation may indemnify or agree to indemnify any
person who was or is a party, or is threatened to be made a party, to
any threatened, pending, or completed action or suit by or in the right
of the corporation to procure a judgment in its favor, by reason of the
fact that he is or was a director, officer, employee, or agent of the
corporation, or is or was serving at the request of the corporation as
a director, trustee, officer, employee, member, manager, or agent of
another corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture, trust, or
other enterprise, against expenses, including attorney's fees, actually
and reasonably incurred by him in connection with the defense or
settlement of such action or suit, 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, except that no indemnification shall be
made in respect of any of the following:
(a) Any claim, issue, or matter as to which such
person is adjudged to be liable for negligence or misconduct
in the performance of his duty to the corporation unless, and
only to the extent that, the court of common pleas or the
court in which such action or suit was brought determines,
upon application, that, despite the adjudication of liability,
but in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such
expenses as the court of common pleas or such other court
shall deem proper;
(b) Any action or suit in which the only liability
asserted against a director is pursuant to section 1701.95 of
the Revised Code.
(3) To the extent that a director, trustee, officer, employee,
member, manager, or agent has been successful on the merits or
otherwise in defense of any action, suit, or proceeding referred to in
division (E)(1) or (2) of this section, or in defense of any claim,
issue or matter therein, he shall be indemnified against expenses,
including attorney's fees, actually and reasonably incurred by him in
connection with the action, suit, or proceeding.
(4) Any indemnification under division (E)(1) or (2) of this
section, unless ordered by a court, shall be made by the corporation
only as authorized in the specific case, upon a determination that
indemnification of the director, trustee, officer, employee, member,
manager, or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in division (E)(1) or (2) of
this section. Such determination shall be made as follows:
(a) By a majority vote of a quorum consisting of
directors of the indemnifying corporation who were not and are
not parties to or threatened by the action, suit, or
proceeding referred to in division (E)(1) or (2) of this
section;
(b) If the quorum described in division (E)(4)(a) of
this section is not obtainable or if a majority vote of a
quorum of disinterested directors so directs, in a written
opinion by independent legal counsel other than an attorney,
or a firm having associated with it an attorney,
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<PAGE> 4
who has been retained by or who has performed services for the
corporation or any person to be indemnified within the past
five years;
(c) By the shareholders; or
(d) By the court of common pleas or the court in
which such action, suit, or proceeding referred to in division
(E)(1) or (2) of this section was brought.
Any determination made by the disinterested directors under division
(E)(4)(a) or by independent legal counsel under division (E)(4)(b) of this
section shall be promptly communicated to the person who threatened or brought
the action or suit by or in the right of the corporation under division (E)(2)
of this section, and, within ten days after receipt of such notification, such
person shall have the right to petition the court of common pleas or the court
in which such action or suit was brought to review the reasonableness of such
determination.
(5) (a) Unless at the time of a director's act or omission
that is the subject of an action, suit, or proceeding referred to in
division (E)(1) or (2) of this section, the articles or the regulations
of a corporation state, by specific reference to this division, that
the provisions of this division do not apply to the corporation and
unless the only liability asserted against a director in an action,
suit, or proceeding referred to in division (E)(1) or (2) of this
section is pursuant to section 1701.95 of the Revised Code, expenses,
including attorney's fees, incurred by a director in defending the
action, suit, or proceeding shall be paid by the corporation as they
are incurred, in advance of the final disposition of the action, suit,
or proceeding, upon receipt of an undertaking by or on behalf of the
director in which he agrees to both of the following:
(i) Repay such amount if it is proved by
clear and convincing evidence in a court of competent
jurisdiction that his action or failure to act
involved an act or omission undertaken with
deliberate intent to cause injury to the corporation
or undertaken with reckless disregard for the best
interests of the corporation;
(ii) Reasonably cooperate with the
corporation concerning the action, suit, or
proceeding.
(b) Expenses, including attorney's fees, incurred by
a director, trustee, officer, employee, member, manager, or
agent in defending any action, suit, or proceeding referred to
in division (E)(1) or (2) of this section, may be paid by the
corporation as they are incurred, in advance of the final
disposition of the action, suit, or proceeding, as authorized
by the directors in the specific case, upon receipt of an
undertaking by or on behalf of the director, trustee, officer,
employee, member, manager, or agent to repay such amount, if
it ultimately is determined that he is not entitled to be
indemnified by the corporation.
(6) The indemnification authorized by this section shall not
be exclusive of, and shall be in addition to, any other rights granted
to those seeking indemnification under the articles, the regulations,
any agreement, a vote of shareholders or disinterested directors, or
otherwise, both as to action in their official capacities and as to
action in another capacity while holding their offices or positions,
and shall continue as to a person who has ceased to be a director,
trustee, officer, employee, member, manager, or agent and shall inure
to the benefit of the heirs, executors, and administrators of such a
person.
(7) A corporation may purchase and maintain insurance or
furnish similar protection, including, but not limited to, trust funds,
letters of credit, or self-insurance, on behalf of or for any person
who is or was a director, officer, employee, or agent of the
corporation, or is or was serving at the request of the corporation as
a director, trustee, officer, employee, member, manager, or agent of
another corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture, trust, or
other enterprise, against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify
him against such liability under this section. Insurance may be
purchased from or maintained with a person in which the corporation has
a financial interest.
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(8) The authority of a corporation to indemnify persons
pursuant to division (E)(1) or (2) of this section does not limit the
payment of expenses as they are incurred, indemnification, insurance,
or other protection that may be provided pursuant to divisions (E)(5),
(6), and (7) of this section. Divisions (E)(1) and (2) of this section
do not create any obligation to repay or return payments made by the
corporation pursuant to division (E)(5), (6), or (7).
(9) As used in division (E) of this section, "corporation"
includes all constituent entities in a consolidation or merger and the
new or surviving corporation, so that any person who is or was a
director, officer, employee, trustee, member, manager, or agent of such
a constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee, member,
manager, or agent of another corporation, domestic or foreign,
nonprofit or for profit, a limited liability company, or a partnership,
joint venture, trust, or other enterprise, shall stand in the same
position under this section with respect to the new or surviving
corporation as he would if he had served the new or surviving
corporation in the same capacity.
Section 29 of the Company's Amended Code of Regulations governs
indemnification by the Company and provides as follows:
29. INDEMNIFICATION. The Corporation shall indemnify, to the
full extent then permitted by law, any person who was or is a party or
is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or
was a member of the Board of Directors or an officer of the
Corporation, or is or was serving at the request of the Corporation as
a director, trustee, officer, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust or other
enterprise. The Corporation shall pay, to the full extent then required
by law, expenses, including attorney's fees, incurred by a member of
the Board of Directors in defending any such action, suit or proceeding
as they are incurred, in advance of the final disposition thereof, and
may pay, in the same manner and to the full extent then permitted by
law, such expenses incurred by any other person. The indemnification
and payment of expenses provided hereby shall not be exclusive of, and
shall be in addition to, any other rights granted to those seeking
indemnification under any law, the Amended Articles of Incorporation,
any agreement, vote of shareholders or disinterested members of the
Board of Directors, or otherwise, both as to action in official
capacities and as to action in another capacity while he or she is a
member of the Board of Directors or an officer of the Corporation, and
shall continue as to a person who has ceased to be a member of the
Board of Directors or an officer of the Corporation or as to a person
who has served at the request of the Corporation as a director,
trustee, officer, employee or agent of another corporation, and shall
inure to the benefit of the heirs, executors, and administrators of
such persons.
In addition, the Company has purchased insurance coverage that will
insure directors and officers against certain liabilities that might be incurred
by them in such capacity.
The Company has also entered into indemnification agreements with
certain directors and executive officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS.*
4(a) Amended Articles of Incorporation of the Company (Incorporated by
reference to Exhibit 3(a) to the Form 10 of the Company (Commission
File No. 0-2788) (the "Form 10"))
4(b) Amended Code of Regulations of the Company (Incorporated by reference
to Exhibit 3(b) to the Form 10)
4(c) The Elder-Beerman Stores Corp. Employee Stock Purchase Plan
5 Legal Opinion of Scott J. Davido, Esq., Senior Vice President, General
Counsel and Secretary of the Company
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23(a) Independent Auditors' Consent
23(b) Consent of Scott J. Davido, Esq. (set forth in the opinion filed as
Exhibit 5 to this Registration Statement)
24 Power of Attorney of certain directors and executive officers of the
Company
- -------------------------------
* In lieu of an opinion of counsel concerning compliance with the
requirements of the Employee Retirement Income Security Act of 1974, as
amended, and an Internal Revenue Service ("IRS") determination letter
that the Plan is qualified under Section 401 of the Internal Revenue
Code of 1986, as amended, the Company hereby undertakes to submit the
Plan and any amendments thereto to the IRS in a timely manner and will
make all changes required by the IRS in order to qualify the Plan
ITEM 9. UNDERTAKINGS.
(a) 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
the 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 the 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 was registered) and any deviation
from the low or high end 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% change in
the maximum aggregate offering price set
forth in the "Calculation of Registration
Fee" table in the effective registration
statement; and
(iii) to include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the registration statement
is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a
post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated
by reference in the 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.
(b) The undersigned registrant 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 Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall
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<PAGE> 7
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.
(c) 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 on Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Dayton, State of Ohio, on the 16th day of March,
1998.
THE ELDER-BEERMAN STORES CORP.
By: /s/ Scott J. Davido
-----------------------------------
Scott J. Davido, Esq.
Senior Vice President, General Counsel
and Secretary
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement on Form S-8 has been signed below by the following
persons in the capacities and on March 16, 1998.
Signature Title
--------- -----
*
- -----------------------------
Frederick J. Mershad Chairman of the Board of Directors and
Chief Executive Officer
(Principal Executive Officer)
*
- -----------------------------
John A. Muskovich President, Chief Operating Officer and Chief
Financial Officer; Director
(Principal Financial Officer)
*
- -----------------------------
Steven D. Lipton Senior Vice President, Controller
(Principal Accounting Officer)
*
- -----------------------------
Thomas J. Noonan, Jr. Director
*
- -----------------------------
Bernard Olsoff Director
*
- -----------------------------
Laura H. Pomerantz Director
*
- -----------------------------
Stewart M. Kasen Director
*
- -----------------------------
John J. Wiesner Director
*
- -----------------------------
Steven C. Mason Director
*
- -----------------------------
Jack A. Staph Director
-8-
<PAGE> 9
* The undersigned, pursuant to certain Powers of Attorney executed by
each of the directors and officers noted above and previously filed or
filed herewith contemporaneously with the Securities and Exchange
Commission, by signing his name hereto, does hereby sign and execute
this Registration Statement on Form S-8 on behalf of each of the
persons noted above, in the capacities indicated.
Dated: March 16, 1998 By: /s/ Scott J. Davido
----------------------------------
Scott J. Davido, Esq.
Attorney-in-Fact
EXHIBIT INDEX
4(a) Amended Articles of Incorporation of the Company (Incorporated by
reference to Exhibit 3(a) to the Form 10 of the Company (Commission
File No. 0-2788) (the "Form 10"))
4(b) Amended Code of Regulations of the Company (Incorporated by reference
to Exhibit 3(b) to the Form 10)
4(c) The Elder-Beerman Stores Corp. Employee Stock Purchase Plan
5 Legal Opinion of Scott J. Davido, Esq., Senior Vice President, General
Counsel and Secretary of the Company
23(a) Independent Auditors' Consent
23(b) Consent of Scott J. Davido, Esq. (set forth in the opinion filed as
Exhibit 5 to this Registration Statement)
24 Power of Attorney of certain directors and executive officers of the
Company
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<PAGE> 1
Exhibit 4(c)
THE ELDER-BEERMAN STORES CORP.
EMPLOYEE STOCK PURCHASE PLAN
SECTION 1. PURPOSE
The Elder-Beerman Stores Corp. Employee Stock Purchase Plan
(the "Plan") is intended to advance the interests of The Elder-Beerman Stores
Corp. (the "Company") and its stockholders by strengthening the Company's
ability to attract and retain employees who have the training, experience and
ability to enhance the profitability of the Company and to reward employees of
the Company and its subsidiaries upon whose judgment, initiative and effort the
successful conduct and development of their business largely depend. The Company
further intends that options issued pursuant to the Plan shall constitute
options issued pursuant to an "employee stock purchase plan" within the meaning
of Section 423 of the Internal Revenue Code of 1986, as amended from time to
time (the "Code").
SECTION 2. ADMINISTRATION
The Plan shall be administered by a Committee that shall
consist of the members of the Board of Directors of the Company (the
"Committee"). The Committee may from time to time delegate all or any part of
its authority under the Plan to a committee of the Board of Directors (or
subcommittee thereof). To the extent of any such delegations, references in the
Plan to the Committee are deemed to be references to any such committee or
subcommittee. A majority of the Committee shall constitute a quorum, and the
action of a majority of the members of the Committee present at any meeting at
which a quorum is present, or acts unanimously approved in writing, shall be the
acts of the Committee.
The interpretation and construction by the Committee of any
provision of the Plan or of any option granted under it shall be final. The
Committee may establish any policies or procedures that in the discretion of the
Committee are relevant to the operation and administration of the Plan and may
adopt rules for the administration of the Plan. No member of the Committee shall
be liable for any action or determination made in good faith with respect to the
Plan or any option granted under it.
SECTION 3. ELIGIBILITY
(a) Options under the Plan to purchase the Company's common
stock, par value $0.01 ("Common Stock"), will be offered to:
(i) all exempt and full-time non-exempt employees of
the Company or a subsidiary of the Company designated by the
Company who have completed their 90-day probationary period;
and
(ii) all part-time non-exempt employees of the
Company or a subsidiary of the Company designated by the
Company who have been employed by the Company or any
subsidiary thereof for two or more years;
provided, however, that no employee shall be granted an option under the Plan
if, immediately after the option was granted, such employee would own stock
possessing 5% or more of the total combined voting power or value of all classes
of stock of the Company. For purposes of this Subsection, stock ownership of an
individual shall be determined under the rules of Section 424(d) of the Code,
and stock that the employee may purchase under outstanding options shall be
treated as owned by the employee.
(b) An eligible employee may commence participation by
completing an authorization for payroll deduction on a form provided by the
Committee and filed with the Committee prior to the beginning of the Company's
fiscal quarter next following the date the employee first meets the requirements
of Subsection (a) of this Section. Such authorization will remain in effect,
unless changed by the eligible employee in accordance with Section 5(c).
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<PAGE> 2
(c) All payroll deductions made for an eligible employee will
be credited to an account maintained for him under the Plan by the Committee
(the "Account"). An eligible employee may not make any separate cash payment
into such Account except as may be expressly authorized by the Committee.
SECTION 4. STOCK
The stock subject to the options granted under the Plan shall
be fully registered, unrestricted shares of authorized and issued Common Stock.
The aggregate number of shares that may be purchased under the Plan will not
exceed 625,000 shares of Common Stock. In the event that the number of shares
subject to options to be granted pursuant to any offering under the Plan exceeds
the number of shares available to be purchased under the Plan, the shares
available to be purchased shall be allocated on a pro rata basis among the
options to be granted.
SECTION 5. TERMS AND CONDITIONS OF OPTIONS
Options granted pursuant to the Plan will be evidenced by
agreements in such form as the Committee shall from time to time approve,
provided that all employees granted such options shall have the same rights and
privileges (except as otherwise provided in Subsections (a) and (e) of this
Section). Options will be granted on the first day of each of the Company's
fiscal quarters and will comply with and be subject to the following terms and
conditions:
(a) NUMBER OF SHARES. Each option granted hereunder
shall state the number of shares to which it pertains, which number
shall be determined, prior to the date of granting of such option, with
respect to the employee to whom such option is offered, in accordance
with uniform policies and procedures established by the Committee;
provided, however, that the number of shares to which any option may
pertain shall not exceed a maximum number to be computed in accordance
with the following:
Each eligible employee shall be deemed to have been granted an
option to purchase a maximum number of whole shares of Common
Stock equal to: (i) that percentage of the eligible employee's
base compensation that he has elected to have withheld (but in
no event more than 10%) multiplied by (ii) the eligible
employee's base compensation (as hereinafter defined) not in
excess of $62,500 during the applicable fiscal quarter of the
Company (iii) divided by 85% of the fair market value of the
Common Stock on the exercise date (as defined in Subsection
(d) of this Section). If the number of shares computed in
accordance with the foregoing includes a fraction, such number
shall be rounded down to the next whole number. For purposes
of this Subsection, the term "base compensation" is the
quarterly cash compensation of the employee (assuming equal
payments over the offering period) excluding, without
limitation, any bonuses or awards under the Company's
management incentive program, but including any commissions or
productivity incentive, to be determined as of the pay period
immediately preceding a date 30 days prior to the date of
grant of such option.
Notwithstanding the above, the Committee shall, in
its discretion, have the authority to exclude, with respect to all
employees, any other form of compensation from the definition of "base
compensation," provided such exclusion shall comply with Section
423(b)(5) of the Code. In addition, the Committee shall, in determining
the number of shares subject to an option, have the authority, prior to
the date of grant of such option, to adjust the percentage to a
percentage from 1% to 10%, both inclusive. Further, the Committee may,
in its discretion, prior to any offering pursuant to the Plan, set a
maximum aggregate number of shares (subject to Section 4 of the Plan)
that may be purchased under options granted pursuant to the offering.
In the event an eligible employee elects to withhold funds from his
base compensation and/or reinvest dividends sufficient to purchase
shares in excess of such maximum number, such amount will be retained
in his Account and used to purchase shares in the next following fiscal
quarter of the Company in which shares may be purchased.
(b) OPTION PRICE. Each option will state the option
price, which shall be determined by the Committee; provided, however,
that such option price will not be an amount less than the lesser of
85% of the fair market value of the shares of Common Stock on the date
of the granting of the option or 85% of the fair market value of such
stock on the exercise date (as defined in Section 5(d) of the Plan).
During such time as the Common Stock is quoted as a National Market
Issue on the National Association of Securities Dealers Automated
National
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<PAGE> 3
Market Quotation System ("NASDAQ"), the fair market value per share
shall be the average of the closing price of the Common Stock as quoted
by NASDAQ on the last three trading days before the day the option is
exercised. Subject to the foregoing, the Committee shall have full
authority and discretion in fixing the option price.
(c) MEDIUM AND TIME OF PAYMENT. The option price
shall be payable in full in United States dollars, pursuant to uniform
policies and procedures established by the Committee, on the exercise
date (as defined in Section 5(d) of the Plan) of such option. The funds
required for such payment will be derived from regular withholding from
an eligible employee's base compensation in approximately equal
installments over the term of the option or such other period as may be
approved by the Committee. Any such funds withheld from an employee's
compensation in excess of the actual option price shall be retained in
the eligible employee's Account and used to purchase shares in the next
following fiscal quarter of the Company. No interest shall accrue on
the employee funds held by the Company. An employee shall have the
right at any time to terminate his payroll deduction authorization from
his compensation of amounts to be paid toward the option price, or to
decrease the amount so withheld, by submitting a written request to the
Company; provided, however, that if an eligible employee terminates his
payroll deduction, he may not recommence a payroll deduction under the
Plan until the expiration of one full fiscal quarter of the Company. An
employee shall have the right to cancel his option in whole or in part
and to obtain a refund of amounts withheld from his compensation by the
Company by submitting a written request to the Company that must be
received by the Company at least 5 business days prior to the exercise
date. Such withheld amounts shall thereafter be paid to the employee
within a reasonable period of time. No interest will accrue on such
amounts.
(d) TERM OF OPTION. The date on which the Common
Stock to which an option pertains is to be purchased by the optionee
(the "exercise date") will be the last day of the term of the option,
except as otherwise provided in the Plan. The term of each option
granted hereunder will be one fiscal quarter of the Company. Except to
the extent an option has been canceled by the optionee prior to the
exercise date, it shall be deemed automatically exercised on the
exercise date to the extent of payments received from the optionee.
(e) ACCRUAL LIMITATION. No option shall permit the
rights of an optionee to purchase stock under all "employee stock
purchase plans" (as defined in the Code) of the Company to accrue at a
rate that exceeds $25,000 of fair market value of such stock
(determined at the time the option is granted) for each fiscal year of
the Company in which the option is outstanding at any time.
(f) TERMINATION OF EMPLOYMENT. In the event that an
optionee shall cease to be employed by the Company or any subsidiary of
the Company for any reason (including death) before the exercise date
such optionee's right to have his option exercised will be terminated.
Any amounts withheld from the optionee's base compensation for purposes
of the Plan that remain in the employee's Account will be refunded. No
interest will accrue on such amount.
(g) TRANSFER OF OPTION. No option shall be
transferrable by an optionee.
(h) ADJUSTMENTS. The Committee may make or provide
for such adjustments in the option price and in the number or kind of
shares of the Common Stock or other securities covered by outstanding
options as the Committee in its sole discretion, exercised in good
faith, may determine is equitably required to prevent dilution or
enlargement of the rights of optionees that would otherwise result from
(i) any stock dividend, stock split, combination of shares,
recapitalization or other change in the capital structure of the
Company, (ii) any merger, consolidation, spin-off, split-off, spin-out,
split-up, separation, reorganization, partial or complete liquidation,
or other distribution of assets, issuance of rights or warrants to
purchase stock, or (iii) any other corporate transaction or event
having an effect similar to any of the foregoing. Moreover, in the
event of any such transaction or event, the Committee, in its
discretion, may provide in substitution for any or all outstanding
awards under the Plan such alternative consideration as it, in good
faith, may determine to be equitable in the circumstances and may
require in connection therewith the surrender of all awards so
replaced, except that in no event shall the Committee substitute such
alternative consideration that would disqualify the Plan as an
"employee stock purchase plan" within the meaning of Section 423 of the
Code. The Committee may also make or provide for such adjustments in
the number or kind of shares of the Common Stock or other securities
that may be sold under the Plan as the Committee in its sole
discretion, exercised in good faith, may determine is appropriate to
reflect any transaction or event described in clause (i) of the
preceding sentence.
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<PAGE> 4
The grant of an option pursuant to the Plan shall not
affect in any way the right or power of the Company to make
adjustments, reclassifications, reorganizations or changes in its
capital or business structure or to merge or to consolidate or to
dissolve, liquidate or sell or transfer all or any part of its business
or assets.
(i) RIGHTS AS A STOCKHOLDER. An optionee will have no
rights as a stockholder with respect to any Common Stock covered by his
option until the exercise date following payment in full. No adjustment
will be made for dividends (ordinary or extraordinary, whether in cash,
securities or other property) or distributions or other rights for
which the record date is prior to the date of such exercise, except as
provided in Subsection (h) of this Section.
(j) OTHER PROVISIONS. The option agreements
authorized under the Plan shall contain such other provisions as the
Committee may deem advisable, provided that no such provisions may in
any way be in conflict with the terms of the Plan.
SECTION 6. NOTICE OF PURCHASE, STOCK CERTIFICATES, VOTING RIGHTS
(a) After the exercise date in respect of each fiscal quarter,
a report will be made by the Committee to each Participant stating the entries
made to his Account, the number of shares of Common Stock purchased and the
applicable purchase price.
(b) Evidence of shares of Common Stock purchased under the
Plan will be maintained under the Plan for the Account of each Participant and
registered in the manner determined by the Committee. Certificates for the
number of whole shares credited to a Participant's Account will be issued to a
Participant at any time promptly upon written request to the Company; provided,
however, that the Company may, at its election, issue such certificates at such
time or times as the Committee deems appropriate, including, without limitation,
following a Participant's termination of employment with the Company.
(c) Shares of Common Stock held under the Plan for each
Participant will be voted by the holder of record of such shares in accordance
with the Participant's instructions.
SECTION 7. TERM OF PLAN
Options granted pursuant to the Plan will be granted within a
period of 10 years from the confirmation date of the Joint Plan of
Reorganization of The Elder-Beerman Stores Corp. and its subsidiaries.
SECTION 8. AMENDMENT OR TERMINATION OF THE PLAN
The Plan may be amended from time to time by the Board of
Directors of the Company, but without further approval of the stockholders, no
such amendment shall increase the aggregate number of shares of Common Stock
that may be issued and sold under the Plan (except that adjustments authorized
by the last sentence of the first paragraph of Section 5(h) of the Plan shall
not be limited by this provision) or change the designation of Section 3 of the
class of employees eligible to receive options. Furthermore, the Plan may not,
without further approval of the stockholders, be amended in any manner that
would cause options issued under it to fail to meet the requirements applicable
to "employee stock purchase plans" as defined in Section 423 of the Code. The
Plan may be terminated at any time by the Board of Directors of the Company,
subject to the rights of outstanding optionees.
SECTION 9. EFFECTIVE DATE OF PLAN
The Plan will take effect on the effective date of the Joint
Plan of Reorganization of The Elder-Beerman Stores Corp. and its subsidiaries.
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<PAGE> 1
EXHIBIT 5
March 17, 1998
The Elder-Beerman Stores Corp.
3155 El-Bee Road
Dayton, Ohio 45439
Re: Form S-8 Registration Statement
-------------------------------
Gentlemen:
As Senior Vice President, General Counsel and Secretary for The
Elder-Beerman Stores Corp. (the "Company"), I am familiar with the Registration
Statement, dated March 12, 1998, being filed by the Company with the Securities
and Exchange Commission in connection with the registration under the Securities
Act of 1933, as amended, of common stock, without par value ("Common Stock"), of
the Company to be issued pursuant to the Company's Employee Stock Purchase Plan
(the "Plan"). It is my opinion that the shares of Common Stock that may be
issued pursuant to the Plan and the agreements contemplated thereunder (the
"Agreements") will be, when issued in accordance with the Plan and such
Agreements, validly issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as Exhibit 5 to the
above-referenced Registration Statement.
Very truly yours,
/s/ Scott J. Davido
Scott J. Davido, Esq.
Senior Vice President, General Counsel
and Secretary
<PAGE> 1
Exhibit 23(a)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
The Elder-Beerman Stores Corp. on Form S-8, pertaining to 625,000 common shares
registered under The Elder-Beerman Stores Corp. Employee Stock Purchase Plan,
of our report dated April 18, 1997 (which expresses an unqualified opinion and
includes explanatory paragraphs relating to bankruptcy proceedings and the
ability to continue as a going consent) appearing in the Registration Statement
on Form 10 (Reg. No. 0-2788), as amended, filed with the Securities and
Exchange Commission.
DELOITTE & TOUCHE LLP
Dayton, Ohio
March 19, 1998
<PAGE> 1
EXHIBIT 24
THE ELDER-BEERMAN STORES CORP.
REGISTRATION STATEMENT ON FORM S-8
POWER OF ATTORNEY
- ------------------------------------------------------------------------------
The undersigned officer and/or director of The Elder-Beerman Stores
Corp., an Ohio corporation (the "Company"), does hereby make, constitute and
appoint Scott J. Davido and Steven D. Lipton, and each of them, with full power
of substitution and resubstitution, as attorneys or attorney of the undersigned,
to execute and file, under the Securities Act of 1933, as amended, a
Registration Statement on Form S-8 relating to registration of common stock,
without par value, of the Company issuable pursuant to the Company's Employee
Stock Purchase Plan, and any and all amendments or exhibits thereto, and any or
all applications or other documents to be filed with the Securities and Exchange
Commission pertaining to such registration, with full power and authority to do
and perform any and all acts and things whatsoever necessary, appropriate or
desirable to be done in the premises, or in the name, place and stead of the
said director and/or officer, hereby ratifying and approving the acts of said
attorneys and any of them and any such substitute.
IN WITNESS WHEREOF, the undersigned have subscribed these presents as
of the 11th day of March, 1998.
<TABLE>
<S> <C>
/s/ FREDERICK J. MERSHAD /s/ JOHN A. MUSKOVICH
- ------------------------------------------------ -----------------------------------------------------
Frederick J. Mershad John A. Muskovich
Chairman of the Board of Directors and Chief President, Chief Operating Officer and Chief Financial
Executive Officer Officer; Director
(Principal Executive Officer) (Principal Financial and Officer)
/s/ STEVEN D. LIPTON /s/ THOMAS J. NOONAN, JR.
------------------------------------------------ -----------------------------------------------------
Steven D. Lipton Thomas J. Noonan, Jr.
Senior Vice President, Controller Director
(Principal Accounting Officer)
/s/ BERNARD OLSOFF /s/LAURA H. POMERANTZ
------------------------------------------------ -----------------------------------------------------
Bernard Olsoff Laura H. Pomerantz
Director Director
/s/STEWART M. KASEN /s/ JOHN J. WIESNER
------------------------------------------------ -----------------------------------------------------
Stewart M. Kasen John J. Wiesner
Director Director
/s/ STEVEN C. MASON /s/ JACK A. STAPH
------------------------------------------------ -----------------------------------------------------
Steven C. Mason Jack A. Staph
Director Director
</TABLE>
