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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
(MARK ONE)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT
OF 1934
FOR THE FISCAL YEAR ENDED JANUARY 30, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE
ACT OF 1934 [NO FEE REQUIRED]
FOR THE TRANSITION PERIOD FROM _______ TO ______
COMMISSION FILE NUMBER: 0-02788
THE ELDER-BEERMAN STORES CORP.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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OHIO 31-0271980
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
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3155 EL-BEE ROAD, DAYTON, OHIO 45439
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (937) 296-2700
SECURITIES REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT: NONE
SECURITIES REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
COMMON STOCK, NO PAR VALUE
(TITLE OF CLASS)
SHARE PURCHASE RIGHTS
(TITLE OF CLASS)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. YES X NO ___
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ ]
As of April 13, 1999, the aggregate market value of the voting stock held by
non-affiliates of the registrant (based on the closing sale price of such stock
on such date) was approximately $137,215,190.*
The number of shares of Common Stock outstanding on April 13, 1999, was
16,037,880.
Indicate by check mark whether the registrant has filed all documents and
reports required to be filed by Section 12, 13 or 15(d) of the Securities
Exchange Act of 1934 subsequent to the distribution of securities under a plan
confirmed by a court. Yes X No ___
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* Calculated by excluding all shares that may be deemed to be beneficially
owned by executive officers and directors of the registrant, without
conceding that all such persons are "affiliates" of the registrant for
purposes of the federal securities laws.
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TABLE OF CONTENTS
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PART I
Item 1. Business.................................................... 1
General Development of Business............................. 1
Background.................................................. 1
Chapter 11 Case............................................. 2
Business.................................................... 2
Merchandising............................................... 2
Pricing..................................................... 3
Purchasing and Distribution................................. 3
Information Systems......................................... 4
Marketing................................................... 4
Credit Card Program......................................... 4
Customer Service............................................ 4
Expansion................................................... 5
Acquisitions................................................ 5
Seasonality................................................. 5
Competition................................................. 5
Associates.................................................. 5
Item 2. Properties.................................................. 6
Item 3. Legal Proceedings........................................... 9
Item 4. Submission of Matters to a Vote of Security Holders......... 9
Executive Officers of the Registrant.................................. 9
PART II
Item 5. Market for Common Equity and Related Stockholder Matters.... 11
Item 6. Selected Historical Financial Data.......................... 12
Item 7. Management's Discussions and Analysis of Financial Condition 13
and Results of Operations...................................
Results of Operations....................................... 13
Fiscal 1998 Compared to Fiscal 1997......................... 13
Fiscal 1997 Compared to Fiscal 1996......................... 14
Liquidity and Capital Resources............................. 16
Year 2000 Disclosure........................................ 16
Item 7a. Quantitative and Qualitative Disclosures About Market 17
Risk........................................................
Item 8. Financial Statements and Supplementary Data................. 18
Independent Auditors' Report................................ 19
Consolidated Statement of Operations........................ 20
Consolidated Balance Sheets................................. 21
Consolidated Statements of Shareholders' Equity............. 22
Consolidated Statements of Cash Flows....................... 23
Notes to Consolidated Financial Statements.................. 24
Item 9. Changes and Disagreements with Accountants on Accounting and 38
Financial Disclosure........................................
PART III
Item 10. Directors and Executive Officers of the Registrant.......... 38
Item 11. Executive Compensation...................................... 38
Item 12. Security Ownership of Certain Beneficial Owners and 38
Management..................................................
Item 13. Certain Relationships and Related Transaction............... 38
PART IV
Item 14. Exhibits, Financial Statement Schedules and Reports on Form 38
8-K.........................................................
SIGNATURES............................................................ 43
EXHIBIT INDEX......................................................... 44
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PART I
This Annual Report on Form 10-K contains certain forward-looking statements
that are based on management's current beliefs, estimates and assumptions
concerning the operations, future results and prospects of Elder-Beerman and the
retail industry in general. All statements that address operating performance,
events or developments that management anticipates will occur in the future,
including statements related to future sales, profits, expenses, income and
earnings per share, future finance and capital market activity, or statements
expressing general optimism about future results, are forward-looking
statements. In addition, words such as "expects," "anticipates," "intends,"
"plans," "believes," "estimates," variations of such words and similar
expressions are intended to identify forward-looking statements.
Actual results may differ materially from those in the forward- looking
statements. Accordingly, there is no assurance that forward-looking statements
will prove to be accurate.
Many factors could affect Elder-Beerman's future operations and results,
such as the following: increasing price and product competition; fluctuations in
consumer demand and confidence; the availability and mix of inventory;
fluctuations in costs and expenses; the effectiveness of advertising, marketing
and promotional programs; weather conditions that affect consumer traffic in
stores; the continued availability and terms of financing; the outcome of
pending and future litigation; and general economic conditions, such as the rate
of employment, inflation and interest rates and the condition of the capital
markets.
Forward-looking statements are subject to the safe harbors created under
the federal securities laws. Elder-Beerman undertakes no obligation to update
publicly any forward-looking statements, whether as a result of new information,
future events or otherwise.
ITEM 1. BUSINESS
The Elder-Beerman Stores Corp. ("Elder-Beerman" or the "Company"; except
where the context otherwise requires, references to the "Company" refer to
Elder-Beerman and its subsidiaries, as described below) operates department
stores that sell a wide range of moderate to better branded merchandise,
including women's, men's and children's apparel and accessories, cosmetics, home
furnishings, and other consumer goods. In addition, the Company owns a specialty
shoe store chain and a private label credit card program through its
wholly-owned subsidiaries, The Bee-Gee Shoe Corp. ("Bee-Gee") and The El-Bee
Chargit Corp. ("Chargit"), respectively. Elder-Beerman operates 60 department
stores and two furniture stores, principally in smaller Midwestern markets in
Ohio, West Virginia, Indiana, Illinois, Michigan, Wisconsin, Kentucky and
Pennsylvania, and Bee-Gee operates 56 stores (36 shoe outlets and 20 Shoebilee!
stores), principally in smaller Midwestern markets in Ohio, West Virginia,
Indiana, Illinois, Michigan, Pennsylvania and Virginia. See "Properties." The
Company's operations are diversified by size of store, merchandising character,
and character of the community served. The Company seeks to satisfy the
merchandising needs of its geographic markets, serving customers of all ages
with varied tastes and incomes.
GENERAL DEVELOPMENT OF BUSINESS
BACKGROUND
Elder-Beerman and its predecessors have been operating department stores
since 1847. Historically, the Company's underlying strategy had been to achieve
profits through an aggressive approach to (a) containing operating costs, (b)
enhancing gross profits from the sale of merchandise, and (c) expanding its
presence as a regional retailer. This strategy enabled the Company to experience
steady sales growth and consistent earnings results beginning in the mid-1960s
and continuing into the early 1990s. During 1992 and through 1994, the Company
undertook a new and high volume merchandising strategy. During 1995, it became
apparent that this strategy had a negative impact on the Company's financial
position, and the Company entered into negotiations with its lenders for a plan
to provide additional liquidity. These negotiations ultimately were
unsuccessful. In addition, as the need for working capital to fund increased
inventory purchases for the holiday season drew closer, Elder-Beerman's
suppliers began to show concerns about further extensions of trade credit to the
Company in the wake of other bankruptcies in the retail industry. The
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Company was faced with an absence of working capital financing and the prospect
of being unable to secure inventory for the 1995 Christmas season.
CHAPTER 11 CASE
On October 17, 1995, Elder-Beerman and its subsidiaries, Chargit, Bee-Gee,
Margo's LaMode, Inc. ("Margo's"), McCook Wholesale Corp., E-B Community Urban
Redevelopment Corp. and EBA, Inc. , filed voluntary petitions for relief (the
"Reorganization Cases") under chapter 11 of the United States Bankruptcy Code,
as amended (the "Bankruptcy Code"), with the United States Bankruptcy Court for
the Southern District of Ohio, Western Division (the "Bankruptcy Court"). The
Old Elder-Beerman Companies filed their proposed joint plan of reorganization
with the Bankruptcy Court on August 6, 1997, which was subsequently amended (the
"Plan"). The Bankruptcy Court entered an order on December 16, 1997 confirming
the Plan. The Plan became effective on December 30, 1997.
BUSINESS
The Company sells a wide range of merchandise, including women's, men's,
and children's apparel and accessories, cosmetics, home furnishings and other
consumer goods. In addition, as discussed above, the Company owns a shoe store
chain and a private label credit card program through its wholly-owned
subsidiaries, Bee-Gee and Chargit, respectively. The Company's historical
competitive advantage is its niche in medium and small size cities, and in many
cases, Elder-Beerman is the dominant supplier of moderate to better brands of
soft goods (e.g., Liz Claiborne, Estee Lauder, Tommy Hilfiger, Polo, Guess) in
such markets. In many of these cities, there is only one shopping mall, and the
Company is a main department store anchor along with J.C. Penney, Sears, or a
discount retailer such as Kmart. These other anchors generally supply moderate
private label goods, which typically complement the Company's more upscale and
largely branded merchandise. The Company's strong metropolitan rivals have
tended to bypass smaller midwestern cities, leaving Elder-Beerman as the
dominant department store in these smaller markets.
The Company's business strategy is to improve profitability by focusing on
a more productive core department store business, primarily in Dayton, Ohio and
smaller communities in the Midwest. The Company seeks to be the dominant
destination retailer in its markets for fashion apparel, accessories, cosmetics,
shoes, and home accessories for the entire family, while continuing its
tradition of providing strong customer service. In addition, the Company
aggressively uses technology and business process changes to reduce operating
costs and improve operating performance through productivity gains.
The Company's long-term business plan is designed to accomplish its
strategy by (a) focusing on its traditional strengths as the major retailer in
its markets; (b) emphasizing major vendor partnerships to improve sales and
margins while improving supply chain integration and efficiencies; (c) competing
with traditional department store competitors through emphasis on customer
service, timely and broad product assortments, and competitive pricing and
promotions in appropriate markets and product areas; (d) competing with moderate
department stores and discounters through merchandise breadth and advantages in
branded and gift areas; (e) focusing price/product competition in key basic
merchandising areas; and (f) leveraging technology to create a selling culture
with "customer-focused" stores, to develop and execute customer and market
specific marketing programs, and to distribute, price, and promote goods by
market.
MERCHANDISING
The Company carries a broad assortment of goods to provide fashion,
selection and variety found in leading department stores that feature better
merchandise brands. Although all stores stock identical core assortments,
specific types of goods are distributed to stores based on the particular
characteristic of the local market. The Company emphasizes "signature" areas
critical to its image in its niche market, as a primary destination for fashion
apparel, cosmetics and gifts. In addition, through continued efforts to develop
a partnership with its most significant vendors, the Company is using technology
and focused merchandising and distribution to reduce material handling costs and
increase speed in moving stock from the vendor to the selling floor.
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Certain departments in Elder-Beerman's department stores are leased to
independent third parties. These leased departments, which include the fine
jewelry, beauty salon, watch repair, millinery and maternity departments,
provide high quality service and merchandise where specialization and expertise
are critical and the Company's direct participation in the business is not
economically justifiable. Leased department sales are included in
Elder-Beerman's total sales. Management regularly evaluates the performance of
the leased departments and requires compliance with established customer service
guidelines.
Bee-Gee operates two distinct discount footwear formats that are
differentiated by varying degrees of fashion, value and convenience. The
Company's 36 El-Bee Shoe stores offer primarily close-out and special purchase
budget footwear styles for women, men and children in a self-service, open-box
rack format. The 20 Shoebilee! family footwear stores offer national brands in
an updated shopping environment where moderate assortments are merchandised by
lifestyle and classification rather than by size and gender. Merchandise is
presented in a self-select caseline format and is promoted through a
value-priced promotional program. The Company is in the process of converting
several El-Bee Shoe stores to the newer Shoebilee! format. Many Bee-Gee stores
are positioned near existing Elder-Beerman stores to leverage credit marketing
and cross-shopping opportunities.
For the 52 weeks ending January 30, 1999 ("Fiscal 1998"), the 52 weeks
ending January 31, 1998 ("Fiscal 1997") and the 53 weeks ending February 1, 1997
("Fiscal 1996"), the Company's department store percentages of net sales by
major merchandise category were as follows:
THE ELDER-BEERMAN STORES CORP.
RETAIL SALES BY DEPARTMENT
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MERCHANDISE CATEGORY 1998 1997 1996
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% % %
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Women's Ready to Wear....................................... 33.1 34.0 33.2
Accessories, Shoes & Cosmetics.............................. 22.6 21.7 21.6
Men's & Children's.......................................... 24.0 24.3 25.1
Home Store.................................................. 20.3 20.0 20.1
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TOTAL RETAIL................................................ 100.0 100.0 100.0
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PRICING
All pricing decisions are made at the Company's corporate headquarters. The
Company's pricing strategy is designed to provide superior quality and value
appeal by offering competitive prices on fashion from premier national brands.
The Company has effectively been able to generate sales from promotions with
special pricing of limited duration. The Company's management information
systems provide timely sales and gross margin reports that identify sales and
gross margins by item and by store and provide management with the information
and flexibility to adjust prices and inventory levels as necessary.
PURCHASING AND DISTRIBUTION
During Fiscal 1998, the Company purchased merchandise from over 1,000
domestic and foreign manufacturers and suppliers. During that period, the top 25
vendors by dollar volume accounted for approximately 41% of net purchases. In
Fiscal 1998, the Company also purchased approximately 8% of its merchandise,
primarily private label merchandise, through Frederick Atkins, Inc. ("Atkins"),
a national association of major retailers that provides its members with group
purchase opportunities. Management believes it has good relationships with its
suppliers. No other vendor accounted for more than 5% of the Company's
purchases. The Company believes that alternative sources of supply are available
for each category of merchandise it purchases.
Merchandise is generally shipped from vendors, through three consolidation
points, to the Company's distribution center in Dayton, Ohio. Deliveries are
made from the distribution center to each store two to
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seven times per week depending on the store size and the time of year. A
majority of the merchandise is shipped ready for immediate placement on the
selling floor.
INFORMATION SYSTEMS
The Company places great emphasis on its management information systems.
Currently, the Company's merchandising activities are controlled by a series of
on-line systems, including a point-of-sale and sales reporting system, a
purchase order management system, a receiving system and a merchandise planning
system. These integrated systems track merchandise from the order stage through
the selling stage and provide valuable sales performance information for
management.
The Company is presently further enhancing its management information
systems, through capital investment and training programs, to (a) improve the
data integrity of financial and merchandise systems and (b) improve merchandise
analysis and decision making.
MARKETING
The Company's marketing and advertising functions are centralized at its
corporate headquarters and, for the department stores, are focused on
communicating a timely and broad offering of premier branded merchandise, a
strong quality/value relationship and outstanding customer service. The Company
employs comprehensive, multimedia advertising programs including print and
broadcast as well as creative in-store displays, signage and special promotions.
The Company distributes sale catalogs utilizing insertion in Sunday and weekday
newspapers as well as direct mail to preferred charge customers. Catalogs are
supplemented by additional newspaper advertising to support sale events as
scheduled. The Company also uses television and radio in markets where it is
productive and cost efficient. Marketing activities for Bee-Gee are limited
primarily to newspaper, radio, coupons and in-store displays emphasizing price,
seasonal assortments and special promotions.
CREDIT CARD PROGRAM
The Company operates a private label credit card program through its
wholly-owned subsidiary, Chargit. During Fiscal 1998, the Company issued 213,000
Elder-Beerman credit cards for newly opened accounts and had approximately
702,000 Elder-Beerman active credit card accounts during Fiscal 1998. The
Company has made a significant investment in its credit card program since it
believes that Elder-Beerman credit card holders generally constitute the
Company's most loyal and active customers. Elder-Beerman credit card holders
shop more frequently with the Company and generally purchase more merchandise
than customers who pay with cash or third-party credit cards. During Fiscal
1998, approximately 43% of Elder-Beerman's total sales were private label credit
card sales. Cash sales and third party credit cards accounted for 33% and 24% of
sales, respectively. Frequent use of the Elder-Beerman credit card by customers
is an important element in the Company's marketing and growth strategies. The
Company also seeks to increase the use of its private label credit card through
incremental sales or shifting sales from other credit cards and other retailers,
and by attracting new cardholders.
All phases of the credit card operation are handled by Chargit except the
processing of customer mail payments, which is performed pursuant to a retail
lockbox agreement with a bank. Decisions whether to issue a credit card to an
applicant are made on the basis of a credit scoring system.
CUSTOMER SERVICE
Elder-Beerman has a strong tradition of providing quality customer service.
The Company is presently enhancing its customer service image and creating a
customer-oriented store environment by (a) eliminating nonselling activities
from stores; (b) using training and recruiting practices to instill a culture of
customer helpfulness, friendliness and responsiveness; and (c) developing tools
and training to enhance selling skills and awareness.
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EXPANSION
The Company is currently implementing a controlled expansion of new stores
in markets having characteristics consistent with the Company's current markets.
The Company believes that sufficient new locations are available in markets
within or contiguous to the Company's current area of operations to support such
an expansion. In addition, the Company believes that opportunities exist to
expand existing stores where current space constraints prevent adequate
presentation of certain core merchandise departments.
In July 1998, the Company relocated its Southtowne Shopping Center store in
Dayton, Ohio from a 132,000 square foot standalone site to a 212,000 square foot
anchor store in the Dayton Mall. In September 1998, the Company opened a 120,000
square foot mall anchor store in Erie, Pennsylvania. Additionally, during 1998,
the Company relocated its VanBuren store in Dayton, Ohio to a newer store
located 2 miles away and completed expansions at its Columbus, Indiana and
Heath, Ohio stores. During 1997, the Company expanded its Monroe, Michigan,
Muncie, Indiana and Findlay, Ohio stores.
ACQUISITIONS
On July 27, 1998, the Company acquired Stone & Thomas for a purchase price
of approximately $20.2 million in cash, plus the assumption of long term debt of
$17.6 million, subject to postclosing adjustments. Stone & Thomas operated 20
department stores located in West Virginia, Ohio, Kentucky and Virginia under
the name Stone & Thomas. The acquisition has been accounted for as a purchase.
The Company sold seven of the former Stone & Thomas locations and closed two
more of the locations that did not fit its business strategy.
SEASONALITY
The department store business is seasonal, with a high proportion of sales
and operating income generated in November and December. Working capital
requirements fluctuate during the year, increasing somewhat in mid-summer in
anticipation of the fall merchandising season and increasing substantially prior
to the Christmas holiday season when the Company must carry significantly higher
inventory levels. Consumer spending in the peak retail season may be affected by
many factors outside the Company's control including competition, consumer
demand and confidence, weather that affects consumer traffic and general
economic conditions. A failure to generate substantial holiday season sales
could have a material adverse effect on the Company.
COMPETITION
The retail industry in general and the department store and shoe store
businesses in particular are intensely competitive. Generally, the Elder-Beerman
department stores and Bee-Gee shoe stores are in competition not only with other
department stores and family shoe stores, respectively, in their geographic
markets, but also with numerous other types of retail outlets, including
specialty stores, general merchandise stores, off-price and discount stores and
manufacturer outlets. Some of the retailers with which the Company competes have
substantially greater financial resources than the Company and may have other
competitive advantages over the Company. The Elder-Beerman department stores
compete on the basis of quality, depth and breadth of merchandise, prices for
comparable quality merchandise, customer service and store environment. The
Bee-Gee shoe stores compete primarily on the basis of price and convenience.
ASSOCIATES
On January 30, 1999, the Company had approximately 8,830 regular and
part-time employees, approximately 8,353 of which are employed by
Elder-Beerman's department stores. Because of the seasonal nature of the retail
business, the number of employees rises to a peak in the holiday season. None of
the Company's associates are represented by a labor union. The Company's
management considers its relationships with its associates to be satisfactory.
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ITEM 2. PROPERTIES
Elder-Beerman currently operates 60 department stores and two furniture
stores, principally in smaller midwestern markets in Ohio, West Virginia,
Indiana, Illinois, Michigan, Wisconsin, Kentucky and Pennsylvania, and Bee-Gee
operates 56 stores (36 shoe outlets and 20 Shoebilee! stores), principally in
smaller Midwestern markets in Ohio, West Virginia, Indiana, Illinois, Michigan,
Pennsylvania and Virginia. Substantially all of the Company's stores are leased
properties. The Company owns, subject to a mortgage, a 302,570 square foot
office/warehouse facility located in Dayton, Ohio, which serves as its principal
executive offices.
The following table sets forth certain information with respect to
Elder-Beerman's department store locations and Bee-Gee's shoe store locations,
operating as of January 30, 1999, the end of Elder-Beerman's and Bee-Gee's most
recently completed fiscal year:
THE ELDER-BEERMAN STORES CORP.
STORE SUMMARY BY REGION
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TOTAL DATE
STATE/CITY LOCATION SQUARE FEET OPENED OWN/LEASE
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OHIO
Athens University Mall 42,829 09/88 Lease
Bowling Green Woodland Mall 40,700 04/87 Lease
Chillicothe Chillicothe Mall 55,940 05/81 Lease
Home Store 17,609 11/90 Lease
Cincinnati Forest Fair Mall 149,462 04/89 Lease
Dayton Centerville Place 191,400 08/66 Lease
Dayton Fairfield Commons 151,740 10/93 Lease
Dayton Southtowne Furniture 121,000 01/76 Lease
Dayton Northwest Plaza 217,060 02/66 Lease
Dayton Courthouse Plaza 125,390 11/75 Lease
Dayton Dayton Mall 212,000 07/98 Lease
Dayton Salem Furniture 124,987 11/72 Own
Dayton Kettering Town Center 82,078 10/98 Lease
Dayton Northpark Center 101,840 10/94 Lease
Defiance Northtowne Mall 48,000 04/86 Lease
Fairborn Distribution Center 300,000 12/90 Lease
Findlay Findlay Village Mall 74,825 07/90 Lease
Franklin Middletown (Towne Mall) 118,000 1977 Own
Hamilton Hamilton 167,925 04/74 Lease
Heath Indian Mound Mall 73,695 09/86 Lease
Lancaster River Valley Mall 52,725 09/87 Lease
Lima Lima Mall 103,350 11/65 Lease
Marion Southland Mall 74,621 11/84 Lease
Moraine Corporate Offices 302,570 06/70 Own
New Philadelphia New Towne Mall 52,648 10/88 Lease
Piqua Miami Valley Center 59,092 09/88 Lease
Sandusky Sandusky Mall 38,773 03/83 Lease
Springfield Upper Valley Mall 71,868 10/92 Lease
St. Clairsville Ohio Valley Mall 66,545 07/98 Lease
Toledo Woodville 100,000 08/85 Lease
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THE ELDER-BEERMAN STORES CORP.
STORE SUMMARY BY REGION (CONT'D)
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TOTAL DATE
STATE/CITY LOCATION SQUARE FEET OPENED OWN/LEASE
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Toledo Westgate 154,000 08/85 Lease
Wooster Wayne Towne Plaza 53,689 6/94 Lease
Zanesville Colony Square 70,346 09/85 Own
WEST VIRGINIA
Beckley Raleigh Mall 50,210 07/98 Lease
Bridgeport Meadowbrook Mall 70,789 07/98 Lease
Home Store 74,723 07/98 Lease
Charleston Charleston Town Center 31,687 07/98 Lease
Huntington Huntington Mall 75,640 07/98 Lease
Kanawha City Kanawha Mall 41,270 07/98 Lease
Morgantown Morgantown Mall 70,790 09/90 Lease
Morgantown Mountaineer Mall 70,470 07/98 Lease
Vienna Grand Central Mall 106,000 07/98 Lease
Wheeling Wheeling 183,000 07/98 Own
Winfield Liberty Square Center 40,824 07/98 Lease
INDIANA
Anderson Mounds Mall 66,703 07/81 Lease
Columbus Columbus Mall 73,446 02/90 Lease
Elkhart Concord Mall 104,000 11/85 Lease
Evansville Washington Square Mall 134,536 10/93 Lease
Kokomo Kokomo Mall 75,704 10/87 Lease
Marion North Park Mall 55,526 11/78 Lease
Muncie Muncie Mall 80,000 10/97 Lease
Muncie Home Store 22,912 10/89 Lease
Richmond Downtown 100,000 08/74 Lease
Terre Haute Honey Creek Mall 70,380 08/73 Lease
MICHIGAN
Adrian Adrian Mall 54,197 08/87 Lease
Benton Harbor The Orchards Mall 70,428 10/92 Lease
Jackson Westwood Mall 70,425 09/93 Lease
Midland Midland Mall 64,141 10/91 Lease
Monroe Frenchtown Square 99,219 04/88 Lease
Muskegon Lakeshore Marketplace 87,185 10/95 Lease
ILLINOIS
Danville Village Mall 77,300 07/86 Lease
Mattoon Cross Country Mall 54,375 03/78 Lease
WISCONSIN
Beloit Beloit Mall 62,732 10/93 Lease
Green Bay Bay Park Square Mall 75,000 09/95 Lease
KENTUCKY
Ashland Cedar Knolls Galleria 70,000 07/98 Lease
Paducah Kentucky Oaks Mall 60,092 08/82 Lease
PENNSYLVANIA
Erie Millcreek Mall 119,800 9/98 Lease
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THE BEE-GEE SHOE CORP.
STORE SUMMARY BY REGION
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TOTAL DATE
STATE/CITY LOCATION SQUARE FEET OPENED OWN/LEASE
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OHIO
Athens University Mall 3,600 11/88 Lease
Centerville Centerville 6,938 11/94 Lease
Chillicothe Chillicothe Mall 3,600 10/85 Lease
Cincinnati Western Hills Shopping Center 7,800 08/91 Lease
Cincinnati Colerain Hills 4,500 08/72 Lease
Dayton Sugar Creek Plaza 3,200 03/90 Lease
Dayton Southtowne Shopping Center 10,000 08/74 Own
Dayton Northwest Plaza 4,400 03/76 Lease
Defiance Northtowne Mall 6,650 03/91 Lease
East Liverpool Summit Square Shopping Center 3,600 08/91 Lease
Englewood Northmont Plaza 4,200 12/72 Lease
Fairfield Forest Fair Mall 5,172 02/89 Lease
Findlay Flag City Station 5,900 08/91 Lease
Greenville Buckeye Square 3,000 11/83 Lease
Heath Indian Mound Mall 3,319 09/91 Lease
Huber Heights North Park Center 6,700 11/94 Lease
Lancaster River Valley Mall 3,106 08/91 Lease
Lima Clocktower Shopping Center 3,200 04/92 Lease
Marion Southland Mall 4,392 11/97 Lease
Middletown Eastgate Shopping Center 3,500 10/85 Lease
New Philadelphia New Towne Mall 3,621 08/91 Lease
Piqua Miami Valley Mall 3,075 09/88 Lease
Sandusky Park Place 3,705 05/91 Lease
Springfield Springfield Mall 3,000 04/93 Lease
St. Mary's St. Mary's Shopping Center 3,200 08/94 Lease
Streetsboro Streetsboro Market Shopping Center 6,890 09/95 Lease
Tiffin Tiffin Mall 6,576 07/84 Lease
Toledo Spring Meadows Shopping Center 6,000 05/87 Lease
Troy Troy Town Center 3,892 08/90 Lease
Westerville Westerville Shopping Center 3,750 11/71 Lease
Wooster Wayne Towne Plaza 3,150 07/92 Lease
Xenia Xenia Towne Square 3,500 08/85 Lease
Zanesville Colony Square 5,571 11/85 Lease
INDIANA
Clarksville River Falls Mall 6,000 09/98 Lease
Columbus Fair Oaks Mall 3,730 08/90 Lease
Elkhart Concord Mall 6,340 09/90 Lease
Kokomo Markland Mall 5,000 05/88 Lease
Logansport Logansport Mall 3,600 04/90 Lease
Plymouth Pilgrim Place 3,367 05/90 Lease
Richmond Richmond Square Mall 5,450 10/97 Lease
South Bend Scottsdale Mall 4,770 05/83 Lease
Warsaw Marketplace 3,000 11/86 Lease
</TABLE>
8
<PAGE> 11
THE BEE-GEE SHOE CORP.
STORE SUMMARY BY REGION (CONT'D)
<TABLE>
<CAPTION>
TOTAL DATE
STATE/CITY LOCATION SQUARE FEET OPENED OWN/LEASE
- --------------------- --------------------------------------- ----------- ------ ---------
<S> <C> <C> <C> <C>
ILLINOIS
Huntley Huntley Outlet Center 5,000 11/95 Lease
Mattoon Cross County Mall 4,175 08/92 Lease
Peru Peru Mall 3,129 11/92 Lease
Springfield Capital City Shopping Center 4,050 05/88 Lease
PENNSYLVANIA
Grove City Grove City Outlet 4,520 11/94 Lease
Pittsburgh Robinson Towne Center 3,500 08/89 Lease
MICHIGAN
Battle Creek Lakeview Square Mall 5,452 08/98 Lease
Bay City Bay City Mall 4,422 04/98 Lease
Kalamazoo Maple Hill Mall 2,850 03/87 Lease
Lansing Lansing Mall 5,295 08/98 Lease
Mt. Pleasant Indian Hills Plaza 3,200 08/90 Lease
Midland Midland Mall 5,419 10/98 Lease
WEST VIRGINIA
Vienna Vienna 3,750 04/76 Lease
VIRGINIA
Harrisonburg Valley Mall 3,078 09/84 Lease
</TABLE>
ITEM 3. LEGAL PROCEEDINGS
The Company is involved in several legal proceedings arising from its
normal business activities and reserves have been established where appropriate.
Management believes that none of these legal proceedings will have a material
adverse effect on the financial condition, results of operations or cash flows
of the Company.
In addition, as a result of the Reorganization Cases, the Company remains
subject to the jurisdiction of the Bankruptcy Court for matters relating to the
consummation of the Plan.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
EXECUTIVE OFFICERS OF THE REGISTRANT
Frederick J. Mershad has served as Chairman of the Board of Elder-Beerman
since December 1997, as Chief Executive Officer of Elder-Beerman since January
1997 and as President of Elder-Beerman from January 1997 to December 1997. Prior
to this time, Mr. Mershad served as President and Chief Executive Officer of the
Proffitt's division of Saks, Inc. ("Proffitt's") from February 1995 to December
1996; Executive Vice President, Merchandising Stores for Proffitt's from May
1994 to January 1995; Senior Vice President, General Merchandise Manager, Home
Store for the Rich's Department Stores division of Federated Department Stores,
Inc. ("Federated") from August 1993 to May 1994; and Executive Vice President,
Merchandising and Marketing of the McRae's Department Stores division of
Proffitt's from June 1990 to August 1993. Mr. Mershad is 56 years old.
John A. Muskovich has served as President, Chief Operating Officer and a
Director of Elder-Beerman since December 1997 and served as Executive Vice
President of Administration of Elder-Beerman from February 1996 to December
1997. In addition, Mr. Muskovich served as Chief Financial Officer from
9
<PAGE> 12
December 1997 through March 1999. Prior to this time, Mr. Muskovich served as
Director of Business Process for Kmart Corp. from September 1995 to February
1996; President of the Federated Claims Services Group with Federated from
February 1992 to August 1995; Vice President of Benefits of Federated from 1994
to 1995; and Vice President, Corporate Controller of Federated from 1988 to
1992. Mr. Muskovich is 52 years old.
James M. Zamberlan has served as Executive Vice President, Stores of
Elder-Beerman since July 1997. Prior to this time, Mr. Zamberlan served as
Executive Vice President of Stores for Bradlee's, Inc. from September 1995 to
January 1997 and also served as Senior Vice President of Stores for the Lazarus
Division of Federated from November 1989 to August 1995. Mr. Zamberlan is 52
years old.
Scott J. Davido was appointed to the position of Executive Vice President,
Chief Financial Officer and Treasurer in March 1999 and served as Senior Vice
President, General Counsel and Secretary of Elder-Beerman from January 1998
through March 1999. Prior to this time, Mr. Davido was a partner with Jones,
Day, Reavis & Pogue, a law firm, since December 1996, and was employed as an
associate with the firm since September 1987. Mr. Davido is 37 years old.
Steven D. Lipton has served as Senior Vice President, Controller of
Elder-Beerman since March 1996. Prior to this time, Mr. Lipton served as
Operating Vice President of Payroll for Federated Financial & Credit Services
from September 1994 to January 1996 and served as Vice President and Controller
of the Lazarus Division of Federated from February 1990 to August 1994. Mr.
Lipton is 47 years old.
10
<PAGE> 13
PART II
ITEM 5. MARKET FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
The Company's common stock, without par value, (the "Common Stock") is
listed on the Nasdaq Stock Market ("NASDAQ") and is designated a NASDAQ/National
Market System Security trading under the symbol EBSC.
The number of shareholders of record as of April 13, 1999 was 2,046.
No dividends have been paid on the Common Stock. The Company intends to
reinvest earnings in the Company's business to support its operations and
expansion. The Company has no present intention to pay cash dividends in the
foreseeable future, and will determine whether to declare dividends in the
future in light of the Company's earnings, financial condition and capital
requirements. In addition, the Company has certain credit agreements that limit
the payment of dividends.
The Company issued Common Stock and a Series A Warrant and a Series B
Warrant, each convertible into Common Stock, pursuant to the Plan in
satisfaction of certain allowed claims against, or interests in, the Company in
the Reorganization Cases. Based upon the exemptions provided by section 1145 of
the Bankruptcy Code, the Company believes that none of these securities are
required to be registered under the Securities Act of 1933 (the "Securities
Act") in connection with their issuance and distribution pursuant to the Plan.
The Company has no recent sales of unregistered securities other than such
issuances pursuant to the Plan.
The Company's high and low stock prices by quarter for Fiscal 1998 are set
forth below:
<TABLE>
<CAPTION>
HIGH LOW
------- -------
<S> <C> <C>
First Quarter
2/17/98 -- 5/2/98.............................. $27.375 $14.000
Second Quarter
5/3/98 -- 8/1/98............................... $29.375 $21.750
Third Quarter
8/2/98 -- 10/3/98.............................. $23.813 $ 8.250
Fourth Quarter
11/1/98 -- 1/30/99............................. $15.375 $ 8.250
</TABLE>
11
<PAGE> 14
ITEM 6. SELECTED HISTORICAL FINANCIAL DATA
The following table sets forth various selected financial information for
the Company as of and for the fiscal years ended January 30, 1999, January 31,
1998, February 1, 1997, February 3, 1996 and January 28, 1995. Such selected
consolidated financial information should be read in conjunction with the
consolidated financial statements of the Company, including the notes thereto,
set forth in Item 8 of this Form 10-K and "Management's Discussion and Analysis
of Financial Condition and Results of Operations" set forth in Item 7 of this
Form 10-K.
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
--------------------------------------------------------------------------
JAN 30, 1999 JAN 31, 1998 FEB 1, 1997 FEB 3, 1996 (A) JAN 28, 1995
------------ ------------ ----------- --------------- ------------
DOLLARS IN THOUSANDS (EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
CONSOLIDATED STATEMENT OF OPERATIONS
DATA
Total Revenues...................... $657,993 $607,946 $597,008 $608,931 $647,326
Income/(Loss) Before Reorganization
Items and Income Tax Expense
(Benefit)......................... 20,787 11,931 11,579 (33,631) (4,590)
Reorganization Items................ (1,318) 27,542 23,648 19,711
Income/(Loss) Before Extraordinary
Items and Discontinued
Operations (b) (c)................ 25,461 (8,199) (12,429) (51,010) (2,064)
Net Income / (Loss)................. $ 25,461 $(28,952) $(12,429) $(63,286) $(13,355)
Diluted Earnings/(Loss) Per
Common Share:
Continuing Operations............. $ 1.76 $ (6.58) $(100.20) $(411.25) $ (16.64)
Preferred Stock Dividend.......... (7.43)
Discontinued Operations........... 5.92 (98.97) (91.03)
Extraordinary Items............... (22.58)
-------- -------- -------- -------- --------
Net Earnings/(Loss)............ $ 1.76 $ (23.24) $(100.20) $(510.22) $(115.10)
======== ======== ======== ======== ========
Cash Dividends Paid:
Common............................ $ $ $ $ $ 11.55
Preferred......................... $ $ $ $ $ 1.39
BALANCE SHEET DATA
Total Assets........................ $453,959 $371,365 $368,609 $367,069 $267,822
Short-Term Debt..................... 951 1,105 57,931 50,100 6,221
Liabilities Subject to Compromise... 231,675 229,409
Long-Term Obligations............... 121,507 142,024 5,669 3,100 109,487
OTHER DATA
Sales Increase/(Decrease) From
Prior Period...................... 8.8% 2.1% (3.5%) (6.5%)
Dept. Store Comp. Sales Inc./(Dec.)
From Prior Period (d)............. 4.1% 3.7% (1.2%) (8.4%)
</TABLE>
- ---------------
Notes to Selected Historical Financial Data:
(a) Fiscal Year ended February 3, 1996 included 53 weeks as compared to 52 weeks
for each of the other fiscal years shown.
(b) The financial information for Margo's is included in discontinued operations
for all periods.
(c) The financial information for Bee-Gee is included as part of continuing
operations for all periods except for the initial reserve for discontinued
operations that was recorded in Fiscal 1994 and the subsequent reversal
recorded in Fiscal 1995.
(d) Comparable store sales include only those department stores that operated
during the applicable full fiscal year, and has been adjusted for
elimination of complete product lines.
12
<PAGE> 15
SELECTED QUARTERLY FINANCIAL DATA
<TABLE>
<CAPTION>
FISCAL 1998
------------------------------------------------------------------
FIRST QUARTER SECOND QUARTER THIRD QUARTER FOURTH QUARTER
------------- -------------- ------------- --------------
DOLLARS IN THOUSANDS (EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C>
CONSOLIDATED STATEMENT OF OPERATIONS
DATA
Total Revenues...................... $133,222 $131,641 $163,015 $230,115
Income/(Loss) Before Reorganization
Items and Income Tax Expense
(Benefit)......................... (710) 392 2,944 18,161
Reorganization Items................ (1,318)
Income/(Loss) Before Extraordinary
Items and Discontinued
Operations........................ (436) 239 1,825 23,833
Net Income/(Loss)................... $ (436) $ 239 $ 1,825 $ 23,833
Diluted Earnings/(Loss) Per Common
Share:............................ $ (.03) $ .02 $ .11 $ 1.51
</TABLE>
ITEM 7. MANAGEMENT'S DISCUSSIONS AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
The following is a discussion of the financial condition and results of
operations of the Company for Fiscal 1998, Fiscal 1997 and Fiscal 1996. The
Company's fiscal year ends on the Saturday closest to January 31. The discussion
and analysis that follows is based upon and should be read in conjunction with
the Company's Consolidated Financial Statements and the notes thereto included
in Item 8.
RESULTS OF OPERATIONS
FISCAL 1998 COMPARED TO FISCAL 1997
Net sales for Fiscal 1998 increased by 8.8% to $632.4 million from $581.4
million for Fiscal 1997. The increase is due to a 4.1% comparative sales
increase for the department store division, and a 0.1% comparative sales
decrease for the Bee-Gee Shoe division. The department store comparable sales
results include the relocated Dayton Mall flagship store. In addition, the
department stores acquired from Stone & Thomas generated $44.7 million in sales
during the second half of 1998. Women's and men's better sportswear, furniture,
intimate apparel, cosmetics and shoes led the sales increase for the department
stores.
Financing revenue from the Company's private label credit card for Fiscal
1998 decreased by 3.8% to $25.6 million from $26.6 million for Fiscal 1997. The
decline in finance charges is due to a reduction in outstanding customer
accounts receivable, not including the Stone & Thomas customer accounts
receivable portfolio purchased November 23, 1998, and has been partially offset
by an increase in late fees charged.
Cost of goods sold, occupancy, and buying expenses decreased to 71.2% of
net sales for Fiscal 1998 from 72.9% of net sales for Fiscal 1997. This decrease
is primarily due to a charge last year of $5.6 million to record excess
markdowns related to two department store closings versus $1.2 million this year
related to moving two department stores and closing 11 shoe stores. In Fiscal
1998, the LIFO inventory valuation adjustment reduced cost of goods sold by $5.8
million compared to a decrease of $1.4 million in Fiscal 1997. In addition,
there was improved gross margin performance, which was partially offset by an
increase in the buying staff as a result of being more fully staffed, and an
increase in depreciation due to capital expenditures in 1998.
Selling, general, and administrative (including key employee performance
bonus plan expense) and hiring and recruiting expenses for new executives
decreased to 26.7% of net sales for Fiscal 1998 from 27.1% for Fiscal 1997. This
was due to a reduction in the Company's store selling and customer services
expenditures and modification to the Company's fringe benefit plans.
Provision for doubtful accounts decreased to 0.8% of net sales for Fiscal
1998 from 1.5% for Fiscal 1997. This improvement is due to fewer write-offs of
delinquent customer accounts and fewer personal bankruptcies affecting the
Company.
13
<PAGE> 16
Interest expense increased to $11.8 million for Fiscal 1998 from $7.1
million for Fiscal 1997. The increase is due to the additional financing
required to support the payment of bankruptcy obligations in connection with the
consummation of the Company's chapter 11 plan of reorganization and the
acquisition of Stone & Thomas, offset by a reduction resulting from the
Company's issuance of 3,220,000 shares of additional Common Stock. See
" Liquidity and Capital Resources."
Other income increased to $3.3 million for Fiscal 1998 compared to other
income of $0.7 million for Fiscal 1997. The income in 1998 was gains realized
from the sale of the Company's 20% limited partnership interest in a partnership
that owned the Company's 300,000 square foot distribution center, and the sale
of the Southtown department store building. The income in Fiscal 1997 was
realized from interest income recorded due to a federal income tax refund,
partially offset by a mark-to-market adjustment on the unhedged portion of swap
agreements in place at that time.
On July 27, 1998 the Company purchased Stone & Thomas, a department store
retailer based in Wheeling, West Virginia. The acquisition and integration
expenses of $4.2 million incurred during Fiscal 1998 are nonrecurring and relate
to interim financing for the purchase transaction as well as other integration
expenses.
Reorganization income for Fiscal 1998 was $1.3 million versus an expense of
$27.5 million for Fiscal 1997. The Company emerged from bankruptcy protection in
December 1997; however, a favorable settlement of bankruptcy related claims
accrued at the end of Fiscal 1997 occurred in the fourth quarter of 1998.
In Fiscal 1998, federal, state, and city income tax expense was based on
the Company's taxable income reduced by the applicable net operating loss
carryforward generated in previous years. The Company also reviewed the status
of its deferred tax asset valuation allowance at the end of the fiscal year and
determined that the valuation allowance should be reduced to reflect the likely
utilization of net operating loss carryforwards to offset taxable income
generated in future years. This resulted in a net income tax benefit being
recorded in Fiscal 1998. In Fiscal 1997, the Company recorded an income tax
benefit based on a taxable loss and an adjustment to the deferred tax asset
valuation allowance. See the Company's Consolidated Financial Statements and the
accompanying notes set forth in Item 8.
FISCAL 1997 COMPARED TO FISCAL 1996
Net sales for Fiscal 1997 increased by 2.1% to $581.4 million from $569.6
million for Fiscal 1996. The increase is due to a 3.7% comparative store sales
increase for the department store division, offset partially by a 2.5%
comparative stores sales decline for the Bee-Gee Shoe outlet division. The
Company closed the outlet section of the Downtown Dayton, Ohio department store,
the Fairborn, Ohio furniture store, and the outlet section of the Hamilton, Ohio
department store, which contributed a combined total of approximately $5.5
million in Fiscal 1996 sales that were absent in Fiscal 1997. In addition, the
Company closed the Northtowne Mall department store located in Toledo, Ohio and
the department store in Carbondale, Illinois in November 1997, and liquidated
the unprofitable electronics product line in December 1997. The Company's
business is subject to seasonal fluctuations. Approximately one-third of the
Company's annual sales occur in the fourth quarter (i.e., November -- January),
as well as a majority of the Company's profits.
Financing revenue from the Company's private label credit card for Fiscal
1997 decreased by 3.2% to $26.6 million from $27.5 million for Fiscal 1996. The
decline is due to a 2.0% decrease in sales attributed to the Company's private
label credit card, and a resulting decline in the outstanding customer accounts
receivable. The decline in finance charges due to outstanding customer accounts
receivable has been partially offset by an increase in late fees charged.
Cost of goods sold, occupancy, and buying expenses increased to 72.9% of
net sales for Fiscal 1997 from 72.0% of net sales for Fiscal 1996. This increase
is due to $5.6 million in excess markdowns in cost of goods due to store
closings in Fiscal 1997. This increase in costs is partially offset by an
increase in the initial rate of mark-up on goods sold coupled with a decrease in
the markdown rate. In Fiscal 1997, the
14
<PAGE> 17
LIFO inventory valuation adjustment reduced cost of goods sold by $1.4 million
compared to a decrease in cost of goods sold of $1.9 million in Fiscal 1996.
Selling, general, administrative (including key employee performance bonus
plan expense) and hiring and recruiting expenses for new executives decreased by
$5.9 million to $157.4 million for Fiscal 1997 from $163.3 million for Fiscal
1996. This improvement is primarily due to a reduction in payroll and suspension
of ongoing payments on certain computer leases resulting from settlements with
the lessors in which such lessors received claims in the Reorganization Cases,
offset partially by an increase in sales promotion expense. The payroll expense
reduction is primarily attributable to a reduction in store payroll as the
Company implemented several technology driven programs to eliminate store
nonselling workload, such as automating the price change, transfer and return to
vendor processes as well as reengineering the store cash office and gift wrap
functions. In addition, $4 million was incurred under the key employee retention
bonus program for Fiscal 1997 compared to $5.0 million for Fiscal 1996. The
decline is due to an increase in the profit threshold to which such bonus is
tied. The expense savings above were partially offset by an increase of $0.7
million in hiring and recruiting expenses for new executives.
Provision for doubtful accounts increased to 1.5% of net sales for Fiscal
1997 compared to 1.2% of net sales for Fiscal 1996. Consistent with industry
trends, net charge offs increased due to the rise in personal bankruptcy filings
and delinquent customer balances.
Interest expense increased to $7.1 million for Fiscal 1997 from $6.5
million for Fiscal 1996. Interest expense increased due to the additional
borrowings to support working capital requirements and capital expenditures.
Other income fell from $1.1 million in Fiscal 1996 to $0.7 million in
Fiscal 1997. The Company had certain interest rate swap agreements (old swaps)
and was required to make adjustments to market value. For Fiscal 1997, the swap
adjustment to market resulted in an expense of $0.6 million compared to income
of $1.1 million in Fiscal 1996. Fiscal 1997's swap expense was offset by $1.3
million in interest income generated by a federal income tax refund received in
1997. With the emergence from bankruptcy protection, the old swaps were bought
out and are no longer in force. Also, on December 30, 1997 the Company entered
into a new swap agreement with a notional amount of $115 million (expiring
September 28, 2001). This agreement has been matched to the Company's
securitization facility to reduce the impact of interest rate fluctuations. See
Item 7a.
Reorganization expense increased by $3.9 million to $27.5 million for
Fiscal 1997 from $23.6 million for Fiscal 1996. The Company expensed $6.9
million more in professional fees in Fiscal 1997 compared to Fiscal 1996. Also,
in Fiscal 1997 there was a $2.6 million expense recorded for an adjustment to
estimated allowed claims, and a $2.1 million expense recorded for reorganization
bonus that did not occur in Fiscal 1996. In Fiscal 1996 there was an expense
recorded of $7.4 million for equipment lease settlements that did not occur in
Fiscal 1997. There was also a reduction in financing cost expense of $2.4
million.
In Fiscal 1997 a state income tax expense provision was made for
approximately $0.5 million. Fiscal 1997 operating loss resulted in additional
federal net operating loss carryforwards. The Company reviewed the status of its
deferred tax valuation allowance and determined that a deferred tax asset of
$7.9 million should be recognized. This results in a net income tax benefit
being recorded in Fiscal 1997. See the Company's Consolidated Financial
Statements and the accompanying notes set forth in Item 8.
The discontinued operations loss, net of tax, recorded in 1997 is for the
extinguishment of debt for Margo's. In December 1995 the Bankruptcy Court
approved the disposal of Margo's. The loss recorded represents the difference
between the amount of cash Margo's creditors received as part of the plan of
reorganization and the liabilities subject to settlement recorded by Margo's.
In Fiscal 1997 an extraordinary loss of $28.1 million was recorded in
connection with the extinguishment of the Company's prepetition liabilities. The
loss is based on the excess of the fair value of the stock and cash distributed
to the general unsecured creditors over the carrying amount of the liabilities
extinguished.
15
<PAGE> 18
LIQUIDITY AND CAPITAL RESOURCES
The Company's principal sources of funds are cash flow from operations and
borrowings under the Revolving Credit Facility and Receivable Securitization
Facility (collectively, the "Credit Facilities"). The Company's primary ongoing
cash requirements are to fund debt service, make capital expenditures, and
finance working capital. The Company has increased the maximum borrowings amount
to $150 million under the Revolving Credit Facility, and to $175 million under
the Receivable Securitization Facility. The Company increased its Credit
Facilities in part to provide additional borrowing capacity for funding new
customer accounts receivable resulting from the Stone & Thomas acquisition and
to accommodate future growth.
Net cash provided by operating activities was $16.1 million for Fiscal
1998, compared to $53.4 million used in Fiscal 1997. During Fiscal 1998
approximately $15.0 million in payments were made for professional fees, other
administrative expense payments, lease cure payments, and other items that were
related to the Company's chapter 11 case. Trade payables decreased $2.7 million
during Fiscal 1998, compared to an increase of $16.4 million for Fiscal 1997.
The increase in trade payables for Fiscal 1998 reflects increases in inventory
levels for the Elder-Beerman core (i.e., non-Stone & Thomas) department stores
and increases in inventory due to the addition of the Stone & Thomas stores. The
increase in trade payables for Fiscal 1997 reflects trade accounts payable
returning to a normalized level following the commencement of the Company's
chapter 11 case. This was partially offset by a $25.5 million net income for
Fiscal 1998 compared to a $29.0 million net loss for Fiscal 1997.
Net cash used in investing activities was $40.4 million for Fiscal 1998,
compared to $21.0 million for Fiscal 1997. The Stone & Thomas acquisition on
July 27, 1998 required an investment of $19.4 million, net of cash acquired as
part of the Stone & Thomas business. On November 23, 1998 the Company acquired
the Stone & Thomas customer accounts receivable portfolio from Alliance Data
Systems for $13.0 million. During Fiscal 1998 the Company sold seven of the
stores acquired from Stone & Thomas for $5.8 million. The Company also purchased
for $2.8 million the department store building that housed the Southtown
shopping center store. This department store was relocated to the Dayton Mall,
and the Southtown location was sold for $6.0 million. Capital expenditures for
store maintenance, remodeling, and data processing totaled $17.0 million for
Fiscal 1998 compared to $21.0 million for Fiscal 1997.
For Fiscal 1998, net cash provided by financing activities was $26.0
million compared to $73.8 for Fiscal 1997. In August 1998 the Company issued
3,220,000 shares of additional Common Stock. A net amount of $65.4 million was
raised from the offering. The funds provided by the offering were used to pay
down debt for the purchase of Stone & Thomas.
The Company believes that it will generate sufficient cash flow from
operations, as supplemented by its available borrowings under the Credit
Facilities, to meet anticipated working capital and capital expenditure
requirements, as well as debt service requirements under the Credit Facilities.
The Company may from time to time consider acquisitions of department store
assets and companies. Acquisition transactions, if any, are expected to be
financed through a combination of cash on hand from operations, the Credit
Facilities and the possible issuance from time to time of long-term debt or
other securities. Depending upon the conditions in the capital markets and other
factors, the Company will from time to time consider the issuance of debt or
other securities, or other possible capital market transactions, the proceeds of
which could be used to refinance current indebtedness on for other corporate
purposes.
YEAR 2000 DISCLOSURE
The term "Year 2000 Issue" is a general term used to describe the various
problems that may result from the improper processing of dates and
date-sensitive calculations by computers and other machinery as the year 2000 is
approached and reached. These problems generally arise from the fact that most
of the world's computer hardware and software have historically used only two
digits to identify the year in a date, often meaning that the computer will fail
to distinguish dates in the "2000s" from the dates in the "1900s". These
problems may also arise from other sources as well, such as the use of special
codes and conventions in software that make use of the date values.
16
<PAGE> 19
The Company expects to be Year 2000 ready. "Year 2000 ready" means that
critical systems, devices, applications or business relationships have been
evaluated and are expected to be suitable for continued use into and beyond the
Year 2000, and that contingency plans are in place to mitigate risks stemming
from the failure of other parties to be Year 2000 ready.
The Company began addressing the Year 2000 issue in the early 1990s by
changing its computer systems development standards for new systems to utilize
Year 2000 compliant date storage techniques. The Company is using a multistep
approach in conducting its Year 2000 Readiness Project. These steps are
inventory, assessment, remediation and verification, and contingency planning.
The first step, an inventory of critical systems and devices with potential Year
2000 problems was completed in July of 1998. The next step, completed in October
1998, was an assessment to determine any necessary changes to ensure Year 2000
readiness. The assessment confirmed estimates of $300,000 to make central
computer systems Year 2000 ready, and revealed other noninformation systems and
equipment requiring additional remediation costs of $275,000. The Company has
completed evaluation, remediation, verification, and implementation of 95% of
its internally developed systems. The remaining internally developed systems
were completed in the first quarter of 1999. The Company is utilizing internal
and external resources in its effort to be Year 2000 ready by mid 1999. The
Company has completed formal communication with third party information systems
suppliers to solicit Year 2000 readiness statements. Forty-seven third party
information systems suppliers were contacted with the following response: 93%
indicate that they are compliant now, 7% indicate that compliant versions of
their products are available. The Company will implement all but two of these
updated versions in the first quarter of 1999, the remaining noncompliant
suppliers products will be implemented during the second quarter of 1999.
Noninformation systems areas will be completed in the second quarter of 1999.
The Company has issued formal communication to critical noninformation systems
service providers to determine the extent to which the Company is vulnerable to
those third parties' failure to remediate their own Year 2000 issues. The
Company can not predict the outcome of other companies' remediation efforts,
however it has no knowledge that any of these companies' will not be Year 2000
ready. The Company began systems testing in February 1999. The Company will
continue general systems testing to verify that its systems are Year 2000 ready.
Testing will be completed in the second quarter of 1999. The Company will
promptly respond to issues discovered by general systems testing. Contingency
plans will be prepared so that the Company's critical business processes can be
expected to continue to function on January 1, 2000 and beyond. The Company's
contingency plans will be structured to address both remediation efforts of
systems and their components and overall business operating risk. These plans
are intended to mitigate both internal risks as well as potential risks in the
Company's supply chain and in maintaining the confidence of its customers. The
Company believes that its most reasonably likely worst case scenario is that key
suppliers or service providers fail to meet their commitments to the Company due
to failure on their part or on the part of other underlying business entities to
be Year 2000 ready. The Company has assessed the risks associated with such
failures and believes that its contingency plans would mitigate the long-term
effect of such a scenario. If a temporary disruption does occur, the Company
does not expect that it would have a material adverse affect on its financial
position and results of operations.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company is subject to the risk of fluctuating interest rates in the
normal course of business, primarily as a result of its variable rate borrowing.
The Company has entered into a variable to fixed rate interest-rate swap
agreement to effectively reduce its exposure to interest rate fluctuations. A
hypothetical 100 basis point change in interest rates would not materially
affect the Company's financial position, liquidity or results of operations.
The Company does not maintain a trading account for any class of financial
instrument and is not directly subject to any foreign currency exchange or
commodity price risk. As a result, the Company believes that its market risk
exposure is not material to the Company's financial position, liquidity or
results of operations. Certain other information required under this Item 7a is
included in the Company's 1998 Annual Report to Shareholders contained in Item
8.
17
<PAGE> 20
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
INDEPENDENT AUDITORS' REPORT TABLE OF CONTENTS
<TABLE>
<S> <C>
Independent Auditors' Report................................ 19
Consolidated Financial Statements as of January 30, 1999 and
January 31, 1998 and for each of the three fiscal years in
the period ended January 30, 1999:
Statements of Operations.................................. 20
Balance Sheets............................................ 21
Statements of Shareholders' Equity........................ 22
Statements of Cash Flows.................................. 23
Notes to Consolidated Financial Statements................ 24-37
</TABLE>
18
<PAGE> 21
INDEPENDENT AUDITORS' REPORT
To the Board of Directors and Shareholders of
The Elder-Beerman Stores Corp.:
We have audited the accompanying consolidated balance sheets of The
Elder-Beerman Stores Corp. and subsidiaries (the "Company") as of January 30,
1999 and January 31, 1998 and the related consolidated statements of operations,
shareholders' equity and cash flows for each of the three fiscal years in the
period ended January 30, 1999. These financial statements are the responsibility
of the Company's management. Our responsibility is to express an opinion on
these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, such consolidated financial statements present fairly, in
all material respects, the financial position of the Company as of January 30,
1999 and January 31, 1998 and the results of their operations and their cash
flows for each of the three fiscal years in the period ended January 30, 1999,
in conformity with generally accepted accounting principles.
DELOITTE & TOUCHE LLP
April 9, 1999
Dayton, Ohio
19
<PAGE> 22
THE ELDER-BEERMAN STORES CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF OPERATIONS
<TABLE>
<CAPTION>
YEAR ENDED
-----------------------------------------
JANUARY 30, JANUARY 31, FEBRUARY 1,
1999 1998 1997
----------- ----------- -----------
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE
DATA)
<S> <C> <C> <C>
Revenues:
Net sales............................................. $632,420 $581,372 $569,557
Financing............................................. 25,573 26,574 27,451
-------- -------- --------
Total revenues..................................... 657,993 607,946 597,008
-------- -------- --------
Costs and expenses:
Cost of merchandise sold, occupancy and buying
expenses........................................... 450,460 423,542 410,067
Selling, general and administrative expenses.......... 168,995 157,414 163,321
Acquisition and integration expense................... 4,154
Provision for doubtful accounts....................... 5,046 8,636 6,680
Interest expense...................................... 11,844 7,084 6,467
Other income.......................................... (3,293) (661) (1,106)
-------- -------- --------
Total costs and expenses........................... 637,206 596,015 585,429
-------- -------- --------
Earnings before reorganization items and income tax
expense (benefit)..................................... 20,787 11,931 11,579
Reorganization items.................................... 1,318 (27,542) (23,648)
-------- -------- --------
Earnings (loss) before income tax expense (benefit),
discontinued operations and extraordinary item........ 22,105 (15,611) (12,069)
Income tax expense (benefit)............................ (3,356) (7,412) 360
-------- -------- --------
Earnings (loss) from continuing operations.............. 25,461 (8,199) (12,429)
Discontinued operations................................. 7,378
-------- -------- --------
Earnings (loss) before extraordinary item............... 25,461 (821) (12,429)
-------- -------- --------
Extraordinary item...................................... (28,131)
-------- -------- --------
Net earnings (loss)..................................... $ 25,461 $(28,952) $(12,429)
======== ======== ========
Earnings (loss) per common shares -- basic:
Continued operations.................................. $ 1.81 $ (6.58) $(100.20)
Discontinuing operations.............................. 5.92
Extraordinary item.................................... (22.58)
-------- -------- --------
Net earnings (loss)..................................... $ 1.81 $ (23.24) $(100.20)
======== ======== ========
Earnings (loss) per common share -- diluted:
Continuing operations................................. $ 1.76 $ (6.58) $(100.20)
Discontinued operations............................... 5.92
Extraordinary item.................................... (22.58)
-------- -------- --------
Net earnings (loss)..................................... $ 1.76 $ (23.24) $(100.20)
======== ======== ========
</TABLE>
See notes to the consolidated financial statements.
20
<PAGE> 23
THE ELDER-BEERMAN STORES CORP. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
JANUARY 30, JANUARY 31,
1999 1998
----------- -----------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
ASSETS
Current assets:
Cash and equivalents...................................... $ 8,146 $ 6,497
Customer accounts receivable (less allowance for doubtful
accounts: Fiscal 1998 -- $4,377, Fiscal 1997 --
$4,177)................................................ 141,205 136,705
Merchandise inventories................................... 171,764 137,507
Deferred tax asset........................................ 5,151 2,595
Other current assets...................................... 12,143 10,051
-------- --------
338,409 293,355
-------- --------
Property:
Land and improvements..................................... 1,300 1,030
Buildings and leasehold improvements...................... 60,636 62,074
Furniture, fixtures, and equipment........................ 100,950 85,991
Construction in progress.................................. 1,554 1,141
-------- --------
Total cost................................................ 164,440 150,236
Less accumulated depreciation and amortization............ (90,530) (86,980)
-------- --------
Property, net.......................................... 73,910 63,256
-------- --------
Other assets:
Goodwill, net of accumulated amortization of $283......... 15,040
Other..................................................... 26,600 14,754
-------- --------
41,640 14,754
-------- --------
$453,959 $371,365
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Current portion of long term debt......................... $ 951 $ 1,105
Accounts payable.......................................... 53,959 49,005
Accrued liabilities:
Compensation and related items......................... 4,415 8,562
Income and other taxes................................. 9,365 6,581
Rent................................................... 2,902 2,079
Other.................................................. 15,340 11,964
-------- --------
Total current liabilities............................ 86,932 79,296
-------- --------
Long-term obligations -- less current portion............... 121,507 142,024
Deferred items.............................................. 8,019 4,534
Commitments and contingencies (Note O)
Shareholders' equity:
Common stock, no par, 15,898,864 and 12,583,789 shares
issued and outstanding at January 30, 1999 and January 31,
1998, respectively........................................ 266,683 199,351
Unearned compensation -- restricted stock, net.............. (2,028) (1,225)
Deficit..................................................... (27,154) (52,615)
-------- --------
Total shareholders' equity.................................. 237,501 145,511
-------- --------
$453,959 $371,365
======== ========
</TABLE>
See notes to the consolidated financial statements.
21
<PAGE> 24
THE ELDER-BEERMAN STORES CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY (DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
UNEARNED
PREFERRED ADDITIONAL COMPENSATION- TOTAL
STOCK COMMON PAID-IN RESTRICTED SHAREHOLDERS'
SERIES B STOCK CAPITAL STOCK, NET (DEFICIT) EQUITY
--------- -------- ---------- ------------- --------- -------------
<S> <C> <C> <C> <C> <C> <C>
Shareholders' equity at February
3, 1996 (124,036 common shares
outstanding).................. $7 $ 6,511 $23,283 $(11,234) $ 18,567
Net loss........................ (12,429) (12,429)
-- -------- ------- ------- -------- --------
Shareholders' equity at February
1, 1997 (124,036 common shares
outstanding).................. 7 6,511 23,283 (23,663) 6,138
Net loss........................ (28,952) (28,952)
Common stock issuance at
bankruptcy emergence
(12,372,960 shares)........... (7) 191,580 (23,283) 168,290
Restricted shares issued (86,793
common shares)................ 1,260 $(1,225) 35
-- -------- ------- ------- -------- --------
Shareholders' equity at January
31, 1998 (12,583,789 common
shares outstanding)........... 199,351 (1,225) (52,615) 145,511
Net earnings.................... 25,461 25,461
Common stock issued (3,228,943
shares)....................... 65,563 65,563
Restricted shares issued, net of
forfeitures and amortization
(86,132 common shares)........ 1,769 (803) 966
-- -------- ------- ------- -------- --------
Shareholders' equity at January
30, 1999 (15,898,864 common
shares outstanding)........... $266,683 $(2,028) $(27,154) $237,501
== ======== ======= ======= ======== ========
</TABLE>
See notes to the consolidated financial statements.
22
<PAGE> 25
THE ELDER-BEERMAN STORES CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
YEAR ENDED
---------------------------------------
JANUARY 30, JANUARY 31, FEBRUARY 1,
1999 1998 1997
----------- ----------- -----------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Cash flows from operating activities:
Net earnings (loss)....................................... $25,461 $(28,952) $(12,429)
Adjustments to reconcile net loss to net cash provided by
(used in) operating activities:
Provision for doubtful accounts........................... 5,046 8,636 6,680
Deferred income taxes..................................... (4,672) (7,877)
Provision for depreciation and amortization............... 13,860 11,849 13,139
Loss (gain) on disposal of assets......................... (2,418) 665 1,737
Loss on equipment settlements............................. 74 7,458
Stock-based compensation expense.......................... 1,564 85
Payment to general unsecured creditors.................... (82,215)
Discontinued operations................................... (7,378)
Extraordinary item........................................ 28,131
Other..................................................... 365
Changes in noncash assets and liabilities, net of amounts
acquired:
Customer accounts receivable............................ 1,742 2,473 (10,118)
Merchandise inventories................................. (12,384) (10,657) (7,545)
Other current assets.................................... (514) 12,644 (5,331)
Other long-term assets.................................. (690) 1,566 916
Accounts payable........................................ (2,698) 16,423 (2,710)
Accrued liabilities..................................... (8,187) 1,113 (2,478)
------- -------- --------
Net cash provided by (used in) operating
activities......................................... 16,110 (53,420) (10,316)
------- -------- --------
Cash flows from investing activities:
Capital expenditures...................................... (16,966) (20,994) (4,759)
Proceeds from sale of property............................ 11,793 1,200
Acquisition of customer accounts receivable............... (13,046)
Real estate acquired...................................... (2,814)
Payment for acquired business, net of cash acquired....... (19,405)
Other..................................................... 571
------- -------- --------
Net cash used in investing activities................ (40,438) (20,994) (2,988)
------- -------- --------
Cash flows from financing activities:
Net borrowings (payments) under asset securitization
agreement............................................... (8,605) 123,015
Net borrowings (payments) on bankers' acceptance and
revolving lines of credit............................... (10,960) 10,960
Payments on long-term obligations......................... (1,105) (748) (991)
Debt acquisition payments................................. (1,151) (1,634) (1,052)
Proceeds from common stock issuance, net of expense....... 65,381
Payments on debt assumed at acquisition................... (17,583)
Net borrowings (payments) under DIP Facility.............. (57,773) 7,773
------- -------- --------
Net cash provided by financing activities............ 25,977 73,820 5,730
------- -------- --------
Increase (decrease) in cash and equivalents................. 1,649 (594) (7,574)
Cash and equivalents -- beginning of year................... 6,497 7,091 14,665
------- -------- --------
Cash and equivalents -- end of year......................... $ 8,146 $ 6,497 $ 7,091
======= ======== ========
Supplemental cash flow information:
Interest paid............................................. $11,299 $ 6,945 $ 6,929
Income taxes paid......................................... 569 497 335
Supplemental non-cash investing and financing activities:
Capital leases............................................ 235
Property acquired from lease settlements.................. 3,142
</TABLE>
See notes to consolidated financial statements.
23
<PAGE> 26
THE ELDER-BEERMAN STORES CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT SHARE DATA)
A. SIGNIFICANT ACCOUNTING POLICIES
Principles of Consolidation -- The consolidated financial statements
include the accounts of The Elder-Beerman Stores Corp. and subsidiaries,
including The El-Bee Chargit Corp., a finance subsidiary and Bee Gee Shoe
Corp. (collectively , the "Company"). All significant intercompany balances
and transactions have been eliminated in consolidation.
Fiscal Year -- The Company's fiscal year ends on the Saturday nearest
January 31. Fiscal years 1998, 1997 and 1996 consist of 52 weeks ended
January 30, 1999, January 31, 1998 and February 1, 1997, respectively.
Estimates -- The preparation of the consolidated financial statements in
conformity with generally accepted accounting principles requires
management to make estimates and assumptions that affect the reported
amounts of assets and liabilities and disclosure of contingent assets and
liabilities at the date of the consolidated financial statements and the
reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
Related Parties -- The Company leased real estate under operating leases
from certain affiliated entities, which were owned by certain directors and
officers, and made payments to these related parties totaling $3,247 and
$3,742 in fiscal years 1997 and 1996, respectively. As a result of the
issuance of new common shares of the Company as of the Effective Date,
these entities' directors and officers are no longer related parties.
Cash and Equivalents -- The Company considers all highly liquid investments
with original maturities of three months or less at the date of purchase to
be cash equivalents.
Customer Accounts Receivable -- Customer accounts receivable are classified
as current assets since the average collection period is generally less
than one year.
Merchandise Inventories -- Retail inventory is determined principally by
the retail method applied on a last-in, first-out (LIFO) basis and is
stated at the lower of cost or market. If the first-in, first-out (FIFO)
basis had been used, inventories would be higher by $886 at January 30,
1999 and $6,657 at January 31, 1998. The decrease in the LIFO reserve in
fiscal 1998 occurred in the fourth quarter ended January 30, 1999, as a
result of increased inventory levels primarily due to the acquisition of
Stone & Thomas.
Property is stated at cost less accumulated depreciation determined by the
straight-line method over the expected useful lives of the assets. Assets
held under capital leases and related obligations are recorded initially at
the lower of fair market value or the present value of the minimum lease
payments. The straight-line method is used to amortize such capitalized
costs over the lesser of the expected useful life of the asset or the life
of the lease. The estimated useful lives by class of asset are:
<TABLE>
<S> <C>
Buildings................................................... 25 to 50 years
Leasehold improvements...................................... 10 to 20 years
Furniture, fixtures and equipment........................... 3 to 10 years
</TABLE>
Other Assets -- Included in other assets is goodwill, which is amortized
using the straight-line method over an estimated useful life of 25 years.
The Company periodically evaluates the carrying value of long-lived assets,
including goodwill, when events and circumstances warrant such a review.
The carrying value of a long-lived asset is considered impaired when the
anticipated undiscounted cash flow from such asset is separately identified
and is less than its carrying value.
Revenues are recognized on merchandise inventory sold upon receipt by the
customer. Finance revenue is generated by outstanding customer accounts
receivable and recognized as interest is accrued on these outstanding
balances.
Pre-opening costs associated with opening new stores are charged to expense
over the first fiscal year of store operations. In April of 1998, the
American Institute of Certified Public Accountants issued
24
<PAGE> 27
Statement of Position 98-5, Reporting on the Costs of Start-Up Activities,
which requires the costs of start-up costs and organization costs to be
expensed as incurred. The Statement of Position is effective for financial
statements for fiscal years beginning after December 15, 1998. Adoption of
this standard is not expected to have a material impact on the Company's
financial statements.
Advertising Expense -- The cost of advertising is expensed as incurred.
Stock Options -- The Company measures compensation cost for stock options
issued to employees using the intrinsic value based method of accounting in
accordance with Accounting Principles Board Opinion No. 25.
Financial Instruments -- The Company utilizes interest rate swap agreements
to manage its interest rate risks when receivables are sold under asset
securitization programs or other borrowings. The Company does not hold or
issue derivative financial instruments for trading purposes. The Company
does not have derivative financial instruments that are held or issued and
accounted for as hedges of anticipated transactions. Amounts currently due
to or from interest swap counterparties are recorded in interest expense in
the period in which they accrue. Gains or losses on terminated interest
rate swap agreements are included in long-term liabilities or assets and
amortized to interest expense over the shorter of the original term of the
agreements or the life of the financial instruments to which they are
matched. Gains or losses on the mark-to-market for interest rate swap
agreements that do not qualify for hedge accounting are recorded as income
or expense each period.
In June 1998, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards ("SFAS") No. 133, Accounting for Derivative
Instruments and Hedging Activities. Effective for the Company in the fiscal
year beginning February 1, 2000, SFAS 133 requires an entity to recognize
all derivatives as either assets or liabilities in the balance sheet and
measure those instruments at fair value. Gains or losses resulting from
changes in fair value of the derivatives are recorded depending upon
whether the instruments meet the criteria for hedge accounting. The Company
has not completed the process of evaluating the impact that will result
from adopting SFAS No. 133. The Company is therefore unable to determine
the impact, if any, that adopting this standard will have on its financial
position and results of operations when such statement is adopted.
Comprehensive Income -- Effective February 1, 1998, the Company adopted
SFAS No. 130, Reporting Comprehensive Income. This statement, effective for
fiscal years beginning after December 15, 1997, requires the Company to
report components of comprehensive income in a financial statement that is
displayed with the same prominence as other financial statements, if
applicable. Comprehensive income is defined as the change in equity of a
business enterprise during a period from transactions and other events and
circumstances from nonowner sources. It includes all changes in equity
during a period except those resulting from investments by owners and
distributions to owners. Since the Company has no components that would be
included in other comprehensive income, adoption of this standard has no
impact on the Company's financial statements.
Reclassifications -- Certain amounts in the fiscal 1997 and 1996 financial
statements have been reclassed to conform with the fiscal 1998
presentation.
B. CHAPTER 11 CASE
On October 17, 1995 (the "Filing Date"), the Company filed petitions for
relief under chapter 11 of the United States Bankruptcy Code ("Chapter
11"). From that time until December 30, 1997, the Company operated its
business as a debtor in possession subject to the jurisdiction of the
United States Bankruptcy Court for the Southern District of Ohio, Western
Division (the "Bankruptcy Court").
On December 30, 1997 (the "Effective Date"), the Company substantially
consummated its Third Amended Joint Plan of Reorganization dated November
17, 1997, as amended, (the "Joint Plan"), which was confirmed by an order
of the Bankruptcy Court entered on December 16, 1997.
The consolidated financial statements of the Company during its Chapter 11
case were presented in accordance with American Institute of Certified
Public Accountants Statement of Position 90-7, Financial Reporting by
Entities in Reorganization under the Bankruptcy Code ("SOP 90-7"). As of
the Effective Date, the reorganization value of assets of the Company
exceeded total liabilities. As such, in accordance with SOP 90-7,
fresh-start accounting and reporting was not adopted.
25
<PAGE> 28
The Joint Plan established a reorganized Company, including a new Board of
Directors, new benefit and compensation programs and agreements, a
reorganization bonus paid to certain executives, authorization and issuance
of shares of new common and preferred stock and the issuance of warrants.
In addition, the Joint Plan provided for the settlement of prepetition
liabilities subject to compromise, in the Company's Chapter 11 case in
exchange for cash, shares of new common stock or reinstatement as
liabilities of the reorganized Company.
The cash disbursements upon the effectiveness of the Joint Plan were as
follows:
<TABLE>
<S> <C>
Holders of general unsecured claims......................... $ 79,698
Holders of unsecured claims against the Company's
discontinued Margo's operations........................... 2,517
----------
Total payments made to general unsecured creditors.......... $ 82,215
==========
</TABLE>
The new common shares issued upon the effectiveness of the Joint Plan were
as follows:
<TABLE>
<S> <C>
Holders of general unsecured claims......................... 12,279,611
Holders of old common stock interests....................... 124,036
Reorganization bonus to certain executives.................. 93,349
----------
12,496,996
==========
</TABLE>
In addition to receiving new common shares, the holders of common stock
prior to the Company's emergence from bankruptcy received 249,809 Series A
Stock Warrants and 374,713 Series B Stock Warrants at the Effective Date.
The holders of preferred stock prior to the Company's emergence from
bankruptcy were awarded allowed claims as general unsecured claimants and,
accordingly, are included in the general unsecured distributions described
above.
The value of cash and common stock required to be distributed under the
Joint Plan to the Company's general unsecured creditors exceeded the value
of the liabilities settled. Therefore, the Company recorded an
extraordinary loss related to the discharge of these prepetition
liabilities. The extraordinary loss recorded by the Company was determined
as follows:
<TABLE>
<S> <C>
Cash distribution to general unsecured creditors pursuant to
the Joint Plan............................................ $ 79,698
Fair value of new common stock issued to general unsecured
creditors................................................. 178,300
----------
257,998
Less general unsecured claims............................... (229,867)
----------
Extraordinary loss.......................................... $ 28,131
==========
</TABLE>
C. ACQUISITION
On July 27, 1998, the Company acquired Stone & Thomas for a purchase price
of approximately $20,200 in cash, subject to the resolution in the first
half of fiscal 1999 of certain liabilities assumed in the acquisition.
Stone & Thomas operated 20 department stores located in West Virginia,
Ohio, Kentucky, and Virginia. This transaction was recorded using the
purchase method of accounting. The excess of acquisition costs over fair
value of the net assets acquired of $15,323 was recorded as goodwill.
As part of the Company's acquisition of Stone & Thomas, a plan to exit
certain activities resulted in the sale of seven of the store locations,
the closing of two. The Company recorded an accrual to exit of
approximately $6,800, consisting of $3,841 for lease buyouts, $1,522 for
employee severance, and $1,419 for store closings and other expenses. The
Company has paid approximately $3,800 through January 30, 1999 for these
costs and the total amount accrued is expected to be paid by the end of the
first half of fiscal 1999. The balance of this accrual at January 30, 1999
is approximately $3,000. The Company also incurred $4,154 of acquisition
and integration costs that were expensed as recorded as these related to
the operations of the combined companies.
PRO FORMA SUMMARY OF OPERATIONS DATA (UNAUDITED):
The unaudited pro forma summary of operation data for each of the 52 week
periods ended January 30, 1999 and January 31, 1998 have been prepared by
combining the consolidated statement of operations of The Elder-Beerman
Stores Corp. with the consolidated statement of operations of Stone &
Thomas for the same periods. To comply with the disclosures required by
generally accepted accounting principles related to acquisitions, the
following unaudited pro forma financial information is presented as though
the
26
<PAGE> 29
acquisition occurred at the beginning of fiscal 1997. The expected synergy
of this acquisition after integration with the existing business, including
the disposition of stores, is not permitted to be reflected in the pro
forma results. Therefore, the pro forma results are not indicative of
results of operations in the future or in the periods presented below.
Included in the pro forma results are adjustments to depreciation and
amortization based on the purchase price allocation and the effect of the
issuance of additional common shares. The net proceeds of the additional
common shares were used, in part, to purchase Stone & Thomas. The following
pro forma results reflect the operations of all 20 Stone & Thomas stores up
to the date of acquisition.
<TABLE>
<CAPTION>
YEAR ENDED
--------------------------
JANUARY 30, JANUARY 31,
1999 1998
----------- -----------
(UNAUDITED)
<S> <C> <C>
PRO FORMA RESULTS OF OPERATIONS
Net sales................................................... $675,854 $702,836
Earnings (loss) before extraordinary item................... 17,402 (10,224)
Net earnings (loss)......................................... 17,402 (38,355)
Net earnings (loss) per common share -- basic............... 1.11 (8.59)
Net earnings (loss) per common shares -- diluted............ 1.08 (8.59)
</TABLE>
Subsequent to the acquisition, the Company closed two stores and sold seven
store locations. Pro forma net sales for the Company, including only the 11
continuing Stone & Thomas stores are $665,135 and $675,249 for the years
ended January 30, 1999 and January 31, 1998, respectively.
D. CUSTOMER ACCOUNTS RECEIVABLE
Customer accounts receivable, which represent finance subsidiary
receivables, are classified as shown in the following table. Interest is
charged at an annual rate of 18% to 21%, depending on state law.
<TABLE>
<CAPTION>
JANUARY 30, JANUARY 31,
1999 1998
----------- -----------
<S> <C> <C>
TYPE OF ACCOUNT
Optional and other.......................................... $137,592 $131,825
Deferred payment............................................ 8,463 9,736
-------- --------
Total....................................................... 146,055 141,561
Less:
Allowance for doubtful accounts........................... (4,377) (4,177)
Unearned interest on deferred contracts................... (473) (679)
-------- --------
Customer accounts receivable, net........................... $141,205 $136,705
======== ========
</TABLE>
Deferred payment accounts include the remaining unearned interest charge to
be received. Unearned interest is amortized to finance income using the
effective interest method.
<TABLE>
<CAPTION>
YEAR ENDED
-----------------------------------------
JANUARY 30, JANUARY 31, FEBRUARY 1,
1999 1998 1997
----------- ----------- -----------
<S> <C> <C> <C>
Allowance for doubtful accounts:
Balance, beginning of year........................ $ 4,177 $ 3,800 $ 3,200
Provision......................................... 5,046 8,636 6,680
Other............................................. 1,463
Charge offs, net of recoveries.................... (6,309) (8,259) (6,080)
-------- -------- --------
Balance, end of year................................ $ 4,377 $ 4,177 $ 3,800
======== ======== ========
</TABLE>
In the fourth quarter of fiscal 1998, the Company acquired Stone & Thomas'
customer accounts receivable portfolio, which was previously owned and
serviced by a third-party servicer. This purchase was part of the Company's
initial plan of acquisition. The portfolio totaled approximately $11,300,
net of an initial allowance for doubtful accounts of approximately $1,500
and expenses of approximately $300 which were included as part of the
purchase price allocation.
27
<PAGE> 30
Customer accounts receivable result from the Company's proprietary credit
card sales to customers residing principally in the midwestern states. As
such, the Company believes it is not dependent on a given industry or
business for its customer base and therefore has no significant
concentration of credit risk.
The El-Bee Chargit Corp. ("Chargit") purchases substantially all
Elder-Beerman and subsidiaries' proprietary credit card receivables; such
receivables are purchased at a 3% discount (2% discount prior to January
1998). Customer accounts receivable held by the finance subsidiary are
included above; purchase discounts are eliminated in consolidation.
E. LONG-TERM OBLIGATIONS
On December 30, 1997, the Company, through its financing subsidiary,
entered into a three-year $125,000 Revolving Credit Facility ("Credit
Facility") and a three-year variable rate securitization loan agreement
("Securitization Facility") with a commercial bank, that effectively
replaced the prior DIP Facility and paid certain liabilities subject to
compromise and administrative claims. During 1998, the Company increased
the Credit Facility to $150,000 and the Securitization Facility to
$175,000. The Company increased the credit facilities to provide additional
borrowing capacity to accommodate future growth and for funding customer
accounts receivable resulting from the Stone & Thomas acquisition.
The Credit Facility provides for borrowings and letters of credit in an
aggregate amount up to $150,000, subject to a borrowing base formula based
primarily on merchandise inventories and certain borrowing limitations for
a defined limited period of the year. There is a $40,000 sublimit for
letters of credit. The Company has the option to finance borrowings at
either prime plus 37.5 basis points (8.125% at January 30, 1999) or LIBOR
plus a minimum of 137.5 basis points. Subsequent to January 1999, the
interest rate on these borrowings can fluctuate based on certain financial
ratios of the Company. In addition, the Company incurs a commitment fee on
the unused line of credit. As of January 30, 1999, the Company had $12,622
in outstanding letters of credit and approximately $72,000 available for
additional borrowings based primarily on inventory levels at year end.
The Company's customer accounts receivable are pledged as collateral under
the Securitization Facility. The Securitization Facility is a revolving
arrangement whereby the Company can borrow up to $175,000. The borrowings
under this facility are subject to a borrowing base formula based primarily
on outstanding consumer accounts receivable. Borrowings bear interest at
approximately 1-month LIBOR, plus 50 basis points.
Certain financial covenants related to debt, capital expenditures, interest
and fixed charge expenditures are included in the Credit and Securitization
facility agreements. Additionally, there are certain other restrictive
covenants including limitations on the incurrence of additional liens,
indebtedness, payment of dividends, distributions or other payments on and
repurchases of outstanding capital stock, investments, mergers, stock
transfers and sales of assets. Certain ratios related to the performance of
the accounts receivable portfolio are also included.
Long-term obligations consist of the following:
<TABLE>
<CAPTION>
JANUARY 30, JANUARY 31,
1999 1998
----------- -----------
<S> <C> <C>
Mortgage note payable, 9.75%................................ $ 2,606 $ 2,669
Industrial development revenue bonds, variable rates based
on published index of tax-exempt bonds (4.29%)............ 3,880 4,260
Capital lease obligations................................... 1,562 2,225
Credit facility............................................. 10,960
Securitization facility (5.8%).............................. 114,410 123,015
-------- --------
Total....................................................... 122,458 143,129
Less current portion of long-term obligations............... 951 1,105
-------- --------
Net long-term obligations................................... $121,507 $142,024
======== ========
</TABLE>
Maturities of borrowings are $951 in 1999, $115,378 in 2000, $870 in 2001,
$362 in 2002, $281 in 2003 and $4,616 thereafter.
28
<PAGE> 31
Collateral for the industrial development revenue bonds and the mortgage
note payable is land, buildings, furniture, fixtures and equipment with a
net book value of $4,327 at January 30, 1999.
On December 30, 1997, as a requirement of the Securitization Facility, the
Company entered into an interest rate swap agreement with a notional amount
of $115,000, expiring September 28, 2001. This agreement has been matched
to the Securitization Facility to reduce the impact of interest rate
changes on cash flows.
The Company utilizes interest rate swap agreements to effectively establish
long-term fixed rates on borrowings under the Securitization Facility, thus
reducing the impact of interest rate changes on future income. These swap
agreements involve the receipt of variable rate amounts in exchange for
fixed rate interest payments over the life of the agreement. The
differential between the fixed and variable rates to be paid or received is
accrued as interest rates change and is recognized as an adjustment to
interest expense. The Company has outstanding swap agreements with notional
amounts totaling $115,000 for the fiscal years ended 1998 and 1997.
The Company is exposed to credit related losses in the event of
non-performance by the counterparties to the swap agreements. All
counterparties are rated A or higher by Moody's and Standard and Poor's and
the Company does not anticipate non-performance by any of its
counterparties.
F. LEASES
The Company leases retail store properties and certain equipment.
Generally, leases are net leases that require the payment of executory
expenses such as real estate taxes, insurance, maintenance and other
operating costs, in addition to minimum rentals. Leases for retail stores
generally contain renewal or purchase options, or both, and generally
provide for contingent rentals based on a percentage of sales.
Minimum annual rentals, for leases having initial or remaining
noncancelable lease terms in excess of one year at January 30, 1999, are as
follows:
<TABLE>
<CAPTION>
OPERATING CAPITAL
FISCAL YEAR LEASES LEASES
----------- --------- -------
<S> <C> <C>
1999...................................................... $ 25,100 $ 584
2000...................................................... 23,037 525
2001...................................................... 21,360 347
2002...................................................... 19,285 174
2003...................................................... 18,660 81
Thereafter................................................ 166,243 40
-------- ------
Minimum lease payments.................................... $273,685 1,751
========
Less imputed interest..................................... 189
------
Present value of net minimum lease payments................. $1,562
======
</TABLE>
RENT EXPENSE
<TABLE>
<CAPTION>
YEAR ENDED
-----------------------------------------
JANUARY 30, JANUARY 31, FEBRUARY 1
1999 1998 1997
----------- ----------- -----------
<S> <C> <C> <C>
Operating Leases:
Minimum........................................... $22,238 $17,677 $20,489
Contingent........................................ 2,533 2,108 2,136
------- ------- -------
Total rent expense.................................. $24,771 $19,785 $22,625
======= ======= =======
</TABLE>
ASSETS HELD UNDER CAPITAL LEASES
<TABLE>
<CAPTION>
JANUARY 30, JANUARY 31,
1999 1998
----------- -----------
<S> <C> <C> <C>
Buildings........................................... $ 7,338 $11,033
Equipment........................................... 235 235
Less accumulated depreciation and amortization...... (6,646) (9,997)
------- -------
Net................................................. $ 927 $ 1,271
======= =======
</TABLE>
29
<PAGE> 32
Assets acquired under capital leases are included in the consolidated
balance sheets as property, while the related obligations are included in
long-term obligations.
G. INCOME TAXES
Income tax expense (benefit) consists of the following:
<TABLE>
<CAPTION>
YEAR ENDED
-----------------------------------------
JANUARY 30, JANUARY 31, FEBRUARY 1,
1999 1998 1997
----------- ----------- -----------
<S> <C> <C> <C>
Current:
Federal........................................... $ 813 $ $
State and local................................... 503 465 360
-------- -------- --------
1,316 465 360
-------- -------- --------
Deferred:
Net operating losses and tax credit carry
forwards....................................... 8,955 (5,529) (13,560)
Interest.......................................... (6,119) 6,119
Deferred income................................... (266) 1,804 1,513
Discontinued operations........................... 2,362 158
Valuation allowance............................... (12,337) (3,759) 6,495
Other............................................. (1,024) 3,364 (725)
-------- -------- --------
(4,672) (7,877) --
-------- -------- --------
Income tax expense (benefit)........................ $ (3,356) $ (7,412) $ 360
======== ======== ========
</TABLE>
The following table summarizes the major differences between the actual
income tax provision attributable to continuing operations and taxes
computed at the federal statutory rates:
<TABLE>
<CAPTION>
JANUARY 30, JANUARY 31, FEBRUARY 1,
1999 1998 1997
----------- ----------- -----------
<S> <C> <C> <C>
Federal taxes computed at the statutory rate........ $ 7,605 $ (5,464) $ (4,224)
State and local taxes............................... 503 465 360
Valuation allowance................................. (12,337) (7,579) 3,767
Permanent items..................................... 873 5,166 457
-------- -------- --------
Income tax benefit.................................. $ (3,356) $ (7,412) $ 360
======== ======== ========
Effective tax expense (benefit) rate................ -- (47.5)% --
======== ======== ========
</TABLE>
Deferred income taxes consist of the following:
<TABLE>
<CAPTION>
JANUARY 30, JANUARY 31,
1999 1998
----------- -----------
<S> <C> <C>
Deferred tax assets:
Net operating losses and tax credit carry
forwards....................................... $ 21,672 $ 25,576
Deferred income................................... 868 602
Bad debts......................................... 1,546 1,518
Other............................................. 6,132 4,280
-------- --------
30,218 31,976
Valuation allowance............................... (14,464) (23,523)
-------- --------
Total deferred tax assets........................... 15,754 8,453
-------- --------
Deferred tax liabilities............................ 1,431 576
-------- --------
Net deferred tax asset.............................. $ 14,323 $ 7,877
======== ========
Included in the balance sheets:
Current assets -- deferred tax asset.............. $ 5,151 $ 2,595
Other assets...................................... 9,172 5,282
-------- --------
Net deferred tax assets........................... $ 14,323 $ 7,877
-------- --------
</TABLE>
Permanent items consist primarily of bankruptcy related expenses that are
not deductible for tax purposes. The net operating loss carryforwards, tax
credit carryforwards, and other deferred tax assets will
30
<PAGE> 33
result in future benefits only if the Company has taxable income in future
periods. In accordance with SFAS No. 109, Accounting for Income Taxes, a
valuation allowance was recorded for the tax effect of a portion of the
future tax deductions and tax credit carryforwards. In the fourth quarter
of Fiscal 1998 and Fiscal 1997, the Company reduced the valuation allowance
to reflect the likely future utilization of its deferred tax assets.
The federal net operating loss carryforward is approximately $54,000 and is
available to reduce federal taxable income through 2012. The tax credit
carryforward is approximately $2,600; of which $632 will expire in 2009 and
2010, and the balance is an indefinite carryforward.
H. EMPLOYEE BENEFIT PLANS
A defined-contribution employee benefit plan (the "Benefit Plan") covers
substantially all employees. The Company may contribute to the Benefit Plan
based on a percentage of compensation and on a percentage of earnings
before income taxes. Expense of $1,316 was recorded in fiscal 1998 for the
Company's matching contribution to the Benefit Plan. No contribution
expense was recorded in fiscal years 1997 and 1996. Eligible employees can
make contributions to the Benefit Plan through payroll withholdings of one
to fifteen percent of their annual compensation. The Benefit Plan includes
an employee stock ownership component. The Benefit Plan held all of the
previously outstanding preferred shares of the Company. These preferred
shares were included in the settlement of the general unsecured claims on
December 30, 1997. The preferred shares were settled with a distribution to
the Benefit Plan of $4,184 in cash and issuance of 644,680 common shares.
The Company has a Stock Purchase Plan, which provides for its employees to
purchase Elder-Beerman common stock at a 15% discount. Employees can make
contributions to the Stock Purchase Plan through payroll withholdings of
one percent to ten percent of their annual compensation, up to a maximum of
$25 per year. A total of 625,000 shares of common stock are registered and
unissued under the Stock Purchase Plan.
With the acquisition of Stone & Thomas, the Company assumed a defined
benefit pension plan, which covered all full-time employees of Stone &
Thomas upon completion of one year of service and the attainment of age 21.
The benefits were based upon years of service and the earnings. Accrued
benefits were frozen as of September 30, 1998, as part of the Company's
plan of acquisition. The Company's funding policy is to contribute an
amount annually that satisfies the minimum funding requirements of ERISA
and that is tax deductible under the Internal Revenue Code. Effective
January 30, 1999, the company adopted SFAS No. 132, Employers' Disclosures
About Pensions and Other Postretirement Benefits.
31
<PAGE> 34
Summary information for the Company's defined benefit plan as of January
30, 1999 is as follows:
<TABLE>
<S> <C>
Change in the projected benefit obligations:
Projected benefit obligation at date of acquisition....... $(5,772)
Service cost.............................................. (12)
Interest cost............................................. (199)
Actuarial costs........................................... (614)
Benefits paid............................................. 505
-------
Projected benefit obligation at end of year................. (6,092)
-------
Change in the plan assets:
Fair value of plan assets at date of acquisition.......... 5,934
Actuarial return on plan assets........................... 341
Employer contributions.................................... 353
Benefits paid............................................. (505)
-------
Fair value of plan assets at end of year.................. 6,123
-------
Plan assets in excess of projected benefit obligations...... 31
Reconciliation of financial status of plan to amounts
recorded in balance sheet -
Unrecorded effort of net loss (gain) arising from
differences between actuarial assumptions used to
determine periodic pension expense and actual
expense................................................ 521
-------
Net pension asset included in other assets int he Company's
balance sheet............................................. $ 552
=======
Benefit obligation discount rate............................ 6.5%
=======
</TABLE>
The components of net pension (income) for the period July 27, 1998 (date
of acquisition) to January 30, 1999 are as follows:
<TABLE>
<S> <C>
Service cost, benefits earned from date of acquisition...... $(12)
Interest cost on projected benefit obligation............... (199)
Expected return on plan assets.............................. 249
----
Net pension income.......................................... $ 38
====
</TABLE>
Plan assets are held in a trust and are invested primarily in equities and
fixed income obligations. The expected long-term rate of return on plan
assets used in determining net pension income was 8.5%.
I. EARNINGS (LOSS) PER COMMON SHARE
Net earnings (loss) per common share is computed by dividing net earnings
(loss) by the weighted-average number of common shares outstanding during
the year. Stock options, restricted shares, deferred shares and warrants
outstanding represent potential common shares and are included in computing
diluted earnings per share when the effect is dilutive. There was no
dilutive effect of potential common shares in fiscal 1997 and 1996. A
reconciliation of the weighted average shares used in the basic and diluted
earnings per share calculation is as follows:
<TABLE>
<CAPTION>
1998 1997 1996
---------- --------- -------
<S> <C> <C> <C>
Weighted average common shares outstanding --
basic............................................. 14,078,441 1,245,760 124,036
Dilutive potential common shares:
Warrants.......................................... 150,049
Stock options..................................... 185,161
Restricted shares................................. 33,917
Deferred shares................................... 25,388
---------- --------- -------
Adjusted weighted average shares -- diluted......... 14,472,956 1,245,760 124,036
========== ========= =======
</TABLE>
32
<PAGE> 35
J. SHAREHOLDERS' EQUITY
In August 1998, the Company issued 3,220,000 shares of common stock in a
secondary offering at a price of $22 per share. The net proceeds of
approximately $65,400 provided by the offering were used primarily to
reduce debt levels associated with the Company's expansion and acquisition
strategies. In addition, the Company issued 8,943 shares of common stock
under its stock based compensation plans.
At December 30, 1997, the Company issued shares of common stock to its
general unsecured claimants, which included 644,680 shares of common stock
issued in satisfaction of the claims of the old Series B Preferred
Shareholders. The Board of Directors has the authority to issue five
million shares of new preferred stock. At January 30, 1999, these shares
are unissued.
The Company has 25 million no par new common shares authorized. Under a
Rights Agreement, each outstanding common share presently has one right
attached that trades with the common share. Generally, the rights become
exercisable and trade separately after a third party acquires 20% or more
of the common shares or commences a tender offer for a specified percentage
of the common shares. Upon the occurrence of certain additional triggering
events specified in the Rights Agreement, each right would entitle its
holder (other than, in certain instances, the holder of 20% or more of the
common shares) to purchase common shares of the Company at an exercise
price of 50% of the then-current common share market value. The rights
expire on December 30, 2007, unless the Board of Directors takes action
prior to that date to extend the rights, and are presently redeemable at
$.01 per right.
K. STOCK-BASED COMPENSATION
The Equity and Performance Incentive Plan (the "Incentive Plan") authorizes
the Company's Board of Directors to grant restricted shares, stock options,
appreciation rights, deferred shares, performance shares and performance
units. Awards relating to 2,250,000 shares are authorized for issuance
under this plan and awards related to 1,136,509 shares have been issued as
of January 30, 1999.
Officers and key employees have been granted stock options under the
Incentive Plan. The options granted have a maximum term of ten years and
vest over a period ranging from three to five years. In fiscal 1998 and
1997, the Company has granted certain discounted stock options with an
exercise price less than the market price of the stock on the grant date.
The following table summarizes the Company's stock option activity:
<TABLE>
<CAPTION>
WEIGHTED- WEIGHTED-
AVERAGE AVERAGE
EXERCISE EXERCISE
SHARES PRICE SHARES PRICE
------- --------- ------- ---------
<S> <C> <C> <C> <C>
Outstanding at beginning of year.............. 773,000 $10.89 773,000 $10.89
Granted:
Discounted.................................. 29,096 12.07
Undiscounted................................ 165,000 20.51
Cancelled..................................... (29,000) 13.86
------- -------
Outstanding at end of year.................... 938,096 $12.53 773,000 $10.89
======= =======
Exercisable at year end....................... 161,133 $10.89
======= =======
Weighted-average fair value of stock options
granted during the year using the
Black-Scholes options--pricing model
Discounted.................................. $10.47 $ 8.63
Undiscounted................................ 11.96
Weighted-average assumptions used for grants:
Expected dividend yield..................... 0% 0%
Expected volatility......................... 50% 35%
Risk-free interest rate..................... 5.3% 6.5%
Expected life............................... 7 years 7 years
</TABLE>
33
<PAGE> 36
The following table shows various information about stock options
outstanding at January 30, 1999:
<TABLE>
<CAPTION>
OPTIONS OUTSTANDING OPTIONS EXERCISABLE
---------------------- --------------------------
WEIGHTED-
AVERAGE
REMAINING WEIGHTED NUMBER WEIGHTED-
CONTRACTUAL AVERAGE EXERCISABLE AT AVERAGE
RANGE OF LIFE EXERCISE JANUARY 30, EXERCISE
EXERCISE PRICES SHARES (IN YEARS) PRICE 1999 PRICE
--------------- ------- ----------- -------- -------------- ---------
<S> <C> <C> <C> <C> <C>
9.094 --
12.375
............... 778,465 8.9 $10.89 161,133 $10.89
14.125 --
18.000
............... 20,076 9.7 15.91
21.000 --
24.375
............... 139,555 9.1 21.18
------- -------
938,096 9.0 $12,53 161,133 $10.89
======= =======
</TABLE>
The Incentive Plan provides for the issuance of restricted common shares to
certain employees and nonemployee directors of the Company. These shares
have a vesting period of three years. As of January 30, 1999, 172,925
restricted common shares are issued and outstanding under the plan. The
fair value of the restricted shares awarded was $1,769 and $1,260 in fiscal
1998 and 1997, respectively, which is recorded as compensation expense over
the three-year vesting period.
The Incentive Plan also provides for certain employees to elect to defer a
portion of their compensation through the purchase of deferred shares. Each
deferred share represents an employee's right to a share of the Company's
common stock. At January 30, 1999, 24,533 deferred shares are outstanding.
Total compensation costs charged to loss from continuing operations before
income taxes for all stock-based compensation awards was approximately
$1,564 and $85 in fiscal 1998 and 1997, respectively. Had compensation
costs been determined based on the fair value method of SFAS No. 123 for
all plans, the Company's net loss and loss per common share would have been
reduced to the following pro forma amounts:
<TABLE>
<CAPTION>
1998 1997
------- --------
<S> <C> <C>
Net earnings (loss):
As reported............................................... $25,461 $(28,952)
Pro forma................................................. 24,211 (29,018)
Net earnings (loss) per common share -- diluted:
As reported............................................... 1.76 (23.24)
Pro forma................................................. 1.67 (23.29)
</TABLE>
L. DISCONTINUED OPERATIONS
In fiscal 1994, the Company adopted a formal plan to dispose of a
subsidiary, Margo's La Mode, Inc. ("Margo's") and recorded reserves for
loss on disposal. During fiscal 1995, the Company was unsuccessful in its
attempt to sell Margo's and decided to liquidate the subsidiary. Margo's
did not have any sales subsequent to fiscal 1995.
The settlement of Margo's liabilities subject to compromise and other
liabilities upon the Company's emergence from bankruptcy during fiscal 1997
resulted in a net gain from discontinued operations of $7,378. The Company
was able to utilize operating loss carryforwards that were fully reserved
in prior years to offset the income tax expense related to the gain on
discontinued operations. Therefore, there is no income tax expense recorded
in connection with this gain.
M. REORGANIZATION ITEMS
During the fourth quarter ended January 30, 1999, the Company recognized
approximately $1,300 in reorganization income related to the favorable
settlement of bankruptcy related items. Amounts recorded as reorganization
costs for fiscal 1997 and 1996 are as follows:
34
<PAGE> 37
<TABLE>
<CAPTION>
YEAR ENDED
--------------------------
JANUARY 31, FEBRUARY 1,
1998 1997
----------- -----------
<S> <C> <C>
Professional fees........................................... $15,505 $ 8,612
Equipment lease settlements................................. 74 7,458
Restructuring............................................... 6,852 4,497
Adjustment to liabilities subject to compromise............. 2,326
Reorganization bonus........................................ 2,100
Financing costs............................................. 685 3,081
------- -------
Total....................................................... $27,542 $23,648
======= =======
</TABLE>
In fiscal 1997 the Company closed two department stores and discontinued
certain merchandise departments. Property impairment, severance and certain
store closing costs are included in restructuring costs. The Company
negotiated various equipment lease settlements primarily during fiscal
1996. Equipment lease settlement costs primarily resulted from renegotiated
leases where cash payments and unsecured claims satisfied under the Joint
Plan were granted in exchange for ownership of the equipment and relief
from other claims previously filed in connection with the underlying
leases.
N. DISCLOSURES ABOUT FAIR VALUE OF FINANCIAL INSTRUMENTS
The following methods and assumptions were used to estimate the fair value
of each class of financial instruments:
CASH AND EQUIVALENTS -- The carrying amount approximates fair value because
of the short maturity of those instruments.
ACCOUNTS RECEIVABLE -- The net carrying amount approximates fair value
because of the relatively short average maturity of the instruments.
LONG-TERM DEBT -- The carrying amount approximates fair value as a result
of the variable-rate-based borrowings.
INTEREST RATE SWAP AGREEMENTS -- The fair value of interest rate swaps is
based on the quoted market prices that the Company would pay to terminate
the swap agreements at the reporting date. The estimated fair value of the
$115,000 notional amount interest rate swap agreement is $2,625 and $1,548
loss at January 30, 1999 and January 31, 1998, respectively. There is no
carrying amount in the consolidated balance sheets.
O. COMMITMENTS AND CONTINGENCIES
LITIGATION -- The Company is a party to various legal actions and
administrative proceedings and subject to various claims arising in the
ordinary course of business. In addition, as a result of the bankruptcy
case, the Company remains subject to the jurisdiction of the Bankruptcy
Court for matters relating to the consummation of the Joint Plan.
Management believes the outcome of any of the litigation matters that will
have a material effect on the Company's results of operations, cash flows
or financial position have been appropriately accrued.
INSURANCE -- The Company is self-insured for employee medical and workers'
compensation subject to limitations for which insurance has been purchased.
Management believes that those claims reported and not paid and claims
incurred, but not yet reported, are appropriately accrued.
35
<PAGE> 38
P. SEGMENT REPORTING
In June 1997, the Financial Accounting Standards Board (FASB) issued
Statement No. 131, Disclosures about Segments of an Enterprise and Related
Information, which the Company has adopted in the current year. Operating
segments are defined as components of an enterprise for which separate
financial information is available and regularly reviewed by the Company's
senior management.
Management assesses performance and makes operating decisions based on
three reportable segments, Department Store, Shoe Store and Finance
Operations, which have been identified based on differences in products and
services offered and regulatory conditions.
The two retail segments, Department Store and Shoe Store are identified by
the merchandise sold and customer base served. The Department Store segment
sells a wide range of moderate to better branded merchandise, including
women's, men's and children's apparel and accessories, cosmetics, home
furnishings and other consumer goods. The Shoe Store segment offers budget
to moderate assortments of family footwear. The Company's retail stores are
principally engaged in smaller Midwestern markets in Ohio, Indiana,
Illinois, Michigan, Pennsylvania, Wisconsin, Kentucky, Virginia and West
Virginia. Net sales by major merchandising category in the Department Store
segment are as follows:
<TABLE>
<CAPTION>
1998 1997 1996
-------- -------- --------
<S> <C> <C> <C>
MERCHANDISE CATEGORY
Women's Ready to Wear................................ $191,953 $179,990 $170,783
Accessories, Cosmetics............................... 152,650 135,638 132,430
Mens, Childrens...................................... 138,478 128,712 128,933
Home Stores.......................................... 118,109 105,590 103,435
-------- -------- --------
Total Department Store............................... $601,190 $549,930 $535,581
======== ======== ========
</TABLE>
The Finance Operations segment is a private label credit card program
operated by the Company through its wholly owned subsidiary, Chargit.
Finance Operations segment revenues consist primarily of finance charges
earned through issuance of the Company's proprietary credit cards. All
phases of the credit card operation are handled by Chargit, except the
processing of customer mail payments.
The following table sets forth information for each of the Company's
segments(1):
<TABLE>
<CAPTION>
FISCAL YEAR
--------------------------------
1998 1997 1996
-------- -------- --------
<S> <C> <C> <C>
DEPARTMENT STORE
Revenues............................................. $601,190 $549,930 $535,581
Depreciation and amortization........................ 13,045 11,127 12,416
Operating profit (Loss)(1)........................... 15,826 12,883 (2,113)
Capital expenditures................................. 15,933 20,343 4,648
Total assets......................................... 321,385 229,797 320,173
</TABLE>
<TABLE>
<CAPTION>
FISCAL YEAR
--------------------------------
1998 1997 1996
-------- -------- --------
<S> <C> <C> <C>
SHOE STORE
Revenues............................................. $ 31,230 $ 31,442 $ 33,976
Depreciation and amortization........................ 442 406 445
Operating profit(1).................................. 330 569 1,141
Capital expenditures................................. 751 347 111
Total assets......................................... 7,466 8,435 8,250
</TABLE>
<TABLE>
<CAPTION>
FISCAL YEAR
--------------------------------
1998 1997 1996
-------- -------- --------
<S> <C> <C> <C>
FINANCE OPERATIONS
Revenues(2).......................................... $ 32,783 $ 32,081 $ 32,728
Depreciation and amortization........................ 373 316 278
Operating profit(2).................................. 21,461 16,292 19,599
Capital expenditures................................. 282 304
Total assets......................................... 125,108 133,133 40,186
</TABLE>
36
<PAGE> 39
- ---------------
(1) Total segment operating profit is reconciled to income before income
tax expense (benefit), discontinued operations and extraordinary item
as follows:
<TABLE>
<CAPTION>
1998 1997 1996
-------- -------- --------
<S> <C> <C> <C>
Segment operating profit............................. $ 37,617 $ 29,744 $ 18,627
Reorganization items................................. 1,318 (27,542) (23,648)
Store closing costs.................................. (1,772) (8,569)
Acquisition and integration.......................... (4,154)
Interest expense..................................... (11,844) (7,084) (6,467)
Other................................................ 940 (2,160) (581)
-------- -------- --------
$ 22,105 $(15,611) $(12,069)
======== ======== ========
</TABLE>
- ---------------
(2) Finance Operations segment revenues is reconciled to reported financing
revenues as follows:
<TABLE>
<CAPTION>
1998 1997 1996
-------- -------- --------
<S> <C> <C> <C>
Segment revenues..................................... $ 32,783 $ 32,081 $ 32,728
Intersegment operating charge eliminated............. (7,210) (5,507) (5,277)
-------- -------- --------
$ 25,573 $ 26,574 $ 27,451
======== ======== ========
</TABLE>
37
<PAGE> 40
ITEM 9. CHANGES AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL
DISCLOSURE
None.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
(a) Directors
The information set forth under the caption "Election of Directors" in
the Company's definitive proxy statement for its annual meeting of
shareholders to be held May 28, 1999 is hereby incorporated by
reference.
(b) Executive Officers
See Part I.
(c) Compliance with Section 16(a) of the Exchange Act.
The information set forth under the caption "Section 16(a) Beneficial
Ownership Reporting Compliance" in the Company's definitive proxy
statement for its annual meeting of shareholders to be held May 28,
1999 is hereby incorporated by reference.
ITEM 11. EXECUTIVE COMPENSATION
The information set forth under the caption "Compensation of Executive
Officers" in the Company's definitive proxy statement for its annual meeting of
shareholders to be held May 28, 1999 is hereby incorporated by reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information set forth under the caption "Security Ownership of
Management and Certain Beneficial Owners" in the Company's definitive proxy
statement for its annual meeting of shareholders to be held May 28, 1999 is
hereby incorporated by reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTION
None.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a)(1) The following consolidated financial statements of the Company and
its subsidiaries are included in Item 8:
- Consolidated Balance Sheets -- As of January 30, 1999 and January
31, 1998
- Consolidated Statements of Operations -- For the Years Ended
January 30, 1999, January 31, 1998, and February 1, 1997
- Consolidated Statements of Changes in Shareholders' Equity -- For
the Years Ended January 30, 1999, January 31, 1998, and February
1, 1997
- Consolidated Statements of Cash Flows -- For the Years Ended
January 30, 1999, January 31, 1998, and February 1, 1997
- Notes to Consolidated Financial Statements
- Report of Independent Auditors
38
<PAGE> 41
(a)(2) The following consolidated financial statement schedule of the
Company and its subsidiaries is submitted herewith:
All schedules for which provision is made in the applicable accounting
regulations of the Securities and Exchange Commission are included in the
consolidated financial statements, are not required under the related
instructions, or are inapplicable, and therefore have been omitted.
(a)(3) Exhibits
The following Exhibits are included in this Annual Report on Form
10-K:
2(a) Third Amended Joint Plan of Reorganization of The
Elder-Beerman Stores Corp. and its Subsidiaries dated
November 17, 1997 (previously filed as Exhibit 2 to the
Company's Form 10 filed on November 26, 1997 (the "Form
10"), and incorporated herein by reference)
2(b) Agreement and Plan of Merger by and Among The
Elder-Beerman Stores Corp., The Elder-Beerman Acquisition
Corp. and Stone & Thomas dated June 18, 1998 (previously
filed as Exhibit 2(b) to the Company's Registration
Statement on Form S-1 (File No. 333-57447) (the "Form S-1")
and incorporated herein by reference)
2(c) First Amendment to Agreement and Plan of Merger By and
Among The Elder-Beerman Stores Corp., The Elder-Beerman
Acquisition Corp. and Stone & Thomas dated July 27, 1998
(previously filed as Exhibit 2(c) to the Company's Form S-1
and incorporated herein by reference)
3(a) Amended Articles of Incorporation (previously filed as
Exhibit 3(a) to the form 10-K filed on April 30, 1998 (the
"1997 Form 10-K"), and incorporated herein by reference)
3(b) Amended Code of Regulations (previously filed as Exhibit
3(b) to the Form 10 and incorporated herein by reference)
4(a) Stock Certificate for Common Stock (previously filed as
Exhibit 4(a) to the Company's Form 10/A-1 filed on January
23, 1998 (the "Form 10/A-1") and incorporated herein by
reference)
4(b) Form of Registration Rights Agreement (previously filed as
Exhibit 4(b) to the Form 10 and incorporated herein by
reference)
4(c) Rights Agreement By and Between The Elder-Beerman Stores
Corp. and Norwest Bank Minnesota, N.A., dated as of
December 30, 1997 (the "Rights Agreement") (previously
filed as Exhibit 4.1 to the Company's Registration
Statement on Form 8-A filed on November 17, 1998 (the "Form
8-A") and incorporated herein by reference)
4(d) Warrant Agreement by and Between Beerman-Peal Holdings,
Inc. and the Elder-Beerman Stores Corp. for 249,809 shares
of Common Stock at a strike price of $12.80 per share dated
December 30, 1997 (previously filed as Exhibit 4(d) to the
1997 Form 10-K and incorporated herein by reference)
4(e) Warrant Agreement by and Between Beerman-Peal Holdings,
Inc. and the Elder-Beerman Stores Corp. for 374,713 shares
of Common Stock at a strike price of $14.80 per share dated
December 30, 1997 (previously filed as Exhibit 4(e) to the
1997 Form 10-K and incorporated herein by reference)
4(f) Amendment No. 1 to the Rights Agreement, dated as of
November 11, 1998 (previously filed as Exhibit 4.2 to the
Form 8-A and incorporated herein by reference)
10(a)(i) Pooling and Servicing Agreement Among The El-Bee
Receivables Corporation, The El-Bee Chargit Corp. and
Bankers Trust Company, dated December 30, 1997 (previously
filed as Exhibit 10(a)(i) to the Form 10/A-1 and
incorporated herein by reference)
39
<PAGE> 42
10(a)(ii) Series 1997-1 Supplement Among The El-Bee Receivables
Corporation, The El-Bee Chargit Corp. and Bankers Trust
Company, dated December 30, 1997 (previously filed as
Exhibit 10(a)(ii) to the Form 10/A-1 and incorporated
herein by reference)
10(a)(iii) Certificate Purchase Agreement Among The El-Bee
Receivables Corporation, Corporate Receivables Corporation,
The Liquidity Providers Named Herein, CitiCorp North
American, Inc. and Bankers Trust Company, dated December
30, 1997 (previously filed as Exhibit 10(a)(iii) to the
Form 10/A-1 and incorporated herein by reference)
10(a)(iv) Loan Agreement Among The El-Bee Receivables Corporation,
The El-Bee Chargit Corp., Bankers Trust Company, The
Collateral Investors Parties Hereto and CitiCorp North
America, Inc., dated as of December 30, 1997 (previously
filed as Exhibit 10(a)(iv) to the Form 10/A-1 and
incorporated herein by reference)
10(a)(v) Intercreditor Agreement By and Among The El-Bee Chargit
Corp., The Elder-Beerman Stores Corp., Bankers Trust
Company, CitiCorp USA, Inc., CitiCorp North America, Inc.,
Corporate Receivables Corporation and the Liquidity
Providers Named Herein, dated as of December 30, 1997
(previously filed as Exhibit 10(a)(v) to the Form 10/A-1
and incorporated herein by reference)
10(a)(vi) Parent Undertaking Agreement Among The Elder-Beerman
Stores Corp. and Bankers Trust Company, dated as of
December 30, 1997 (previously filed as Exhibit 10(a)(vi) to
the Form 10/A-1 and incorporated herein by reference)
10(a)(vii) Purchase Agreement (Chargit) Among The El-Bee Chargit
Corp. and The El-Bee Receivables Corporation, dated as of
December 30, 1997 (previously filed as Exhibit 10(a)(vii)
to the Form 10/A-1 and incorporated herein by reference)
10(a)(viii) Purchase Agreement (Elder-Beerman) Among The
Elder-Beerman Stores Corp. and The El-Bee Chargit Corp.,
dated as of December 30, 1997 (previously filed as Exhibit
10(a)(viii) to the Form 10/A-1 and incorporated herein by
reference)
10(a)(ix) Subordinated Note Between The El-Bee Receivables
Corporation and The El-Bee Chargit Corp, dated December 30,
1997 (previously filed as Exhibit 10(a)(ix) to the Form
10/A-1 and incorporated herein by reference)
10(b)(i) Credit Agreement Among The Elder-Beerman Stores Corp., The
Lenders Party Hereto, Citibank, N.A. and CitiCorp USA,
Inc., dated as of December 30, 1997 (previously filed as
Exhibit 10(b)(i) to the Form 10/A-1 and incorporated herein
by reference)
10(b)(ii) Borrower Pledge Agreement Made by The Elder-Beerman Stores
Corp. to Citibank, N.A., dated December 30, 1997
(previously filed as Exhibit 10(b)(ii) to the Form 10/A-1
and incorporated herein by reference)
10(b)(iii) Chargit Pledge Agreement Made By The El-Bee Chargit Corp.
to Citibank, N.A., dated December 30, 1997 (previously
filed as Exhibit 10(b)(iii) to the Form 10/A-1 and
incorporated herein by reference)
10(b)(iv) Security Agreement Made By The Elder-Beerman stores Corp.,
The El-Bee Chargit Corp., The Bee-Gee Shoe Corp. in Favor
of CitiCorp USA, Inc., dated December 30, 1997 (previously
filed as Exhibit 10(b)(iv) to the Form 10/A-1 and
incorporated herein by reference)
10(b)(v) Subsidiary Guaranty Made by The El-Bee Chargit Corp., dated
December 30, 1997 (previously filed as Exhibit 10(b)(v) to
the Form 10/A-1 and incorporated herein by reference)
40
<PAGE> 43
10(b)(vi) Subsidiary Guaranty Made by The Bee-Gee Shoe Corp., dated
December 30, 1997 (previously filed as Exhibit 10(b)(vi) to
the Form 10/A-1 and incorporated herein by reference)
10(b)(vii) Form of Revolving Note (previously filed as Exhibit
10(b)(vii) to the Form 10/A-1 and incorporated herein by
reference)
10(b)(viii) Letter Agreement Re: Assignment of Account By and Between
The Elder-Beerman Stores Corp., CitiCorp USA, Inc., and
Bankers Trust Company, dated December 30, 1997 (previously
filed as Exhibit 10(b)(viii) to the Form 10/A-1 and
incorporated herein by reference)
10(c) Form of Employment Agreement for Senior Vice Presidents
(previously filed as Exhibit 10(c) to the Form 10 and
incorporated herein by reference)*
10(d) Form of Employment Agreement for Executive Vice Presidents
(previously filed as Exhibit 10(d) to the Form 10 and
incorporated herein by reference)*
10(f) Form of Director Indemnification Agreement (previously
filed as Exhibit 10(f) to the Form 10 and incorporated
herein by reference)*
10(g) Form of Officer Indemnification Agreement (previously
filed as Exhibit 10(g) to the Form 10 and incorporated
herein by reference)*
10(h) Form of Director and Officer Indemnification Agreement
(previously filed as Exhibit 10(h) to the Form 10 and
incorporated herein by reference)*
10(i) The Elder-Beerman Stores Corp. Equity and Performance
Incentive Plan, Effective December 30, 1997 (previously
filed as Exhibit 10(i) to the 1997 Form 10-K and
incorporated herein by reference)*
10(j) Form of Restricted Stock Agreement for Non-Employee
Director (previously filed as Exhibit 10(j) to the Form 10
and incorporated herein by reference)*
10(k) Form of Restricted Stock Agreement (previously filed as
Exhibit 10(k) to the Form 10 and incorporated herein by
reference)*
10(l) Form of Deferred Shares Agreement (previously filed as
Exhibit 10(l) to the Form 10 and incorporated herein by
reference)*
10(m) Form of Nonqualified Stock Option Agreement for
Non-Employee Director (previously filed as Exhibit 10(m) to
the Form 10 and incorporated herein by reference)*
10(n) Form of Nonqualified Stock Option Agreement (previously
filed as Exhibit 10(n) to the Form 10 and incorporated
herein by reference)*
10(o) Employee Stock Purchase Plan (previously filed as Exhibit
10(o) to the Form 10 and incorporated herein by reference)*
10(p) Comprehensive Settlement Agreement By and Among The
Debtors, The ESOP and the ESOP Committee and the
Shareholders of The Elder-Beerman Stores Corp., dated as of
December 30, 1997 (previously filed as Exhibit 10(p) to the
1997 Form 10-K and incorporated herein by reference)
10(q) Tax Indemnification Agreement By and Among The
Elder-Beerman Stores Corp., the Direct and Indirect
Subsidiaries of Elder-Beerman, Beerman-Peal Holdings, Inc.,
The Beerman-Peal Corporation, Beerman Investments, Inc.,
The Beerman Corporation and The Individuals, Partnerships
and Trusts named Herein dated as of December 15, 1997
(previously filed as Exhibit 10(q) to the Form 10 and
incorporated herein by reference)
10(r) Tax Sharing Agreement By and Among The Elder-Beerman
Stores Corp., The Bee-Gee Shoe Corp. and The El-Bee Chargit
Corp., dated as of December 30, 1997 (previously filed as
Exhibit 10(r) to the Form 10 and incorporated herein by
reference)
41
<PAGE> 44
10(s) Employment Agreement Between The Elder-Beerman Stores
Corp. and John A. Muskovich, dated December 30, 1997
(previously filed as Exhibit 10(s) to the 1997 Form 10-K
and incorporated herein by reference)*
10(t) Amended and Restated Employment Agreement Between The
Elder-Beerman Stores Corp. and Frederick J. Mershad, dated
December 30, 1997 (previously filed as Exhibit 10(t) to the
1997 Form 10-K and incorporated herein by reference)*
10(u) Employment Agreement Between The Elder-Beerman Stores
Corp. and James M. Zamberlan, dated December 30, 1997*
10(v) Employment Agreement Between The Elder-Beerman Stores
Corp. and Scott J. Davido, dated December 30, 1997*
10(w) Amended and Restated Employment Agreement Between The
Elder-Beerman Stores Corp. and Scott J. Davido, dated March
15, 1999*
10(x) Employment Agreement Between The Elder-Beerman Stores
Corp. and Steven D. Lipton, dated December 30, 1997*
10(y) Amended and Restated Credit Agreement Among The
Elder-Beerman Stores Corp., The Lenders Party Thereto,
Citibank, N.A. and CitiCorp USA, Inc., dated as of July 27,
1998 (previously filed as Exhibit 10(b)(i) to the Company's
Form S-1 and incorporated herein by reference)
10(z) Amended and Restated Security Agreement Made By The
Elder-Beerman Stores Corp., The El-Bee Chargit Corp., The
Bee-Gee Shoe Corp. in Favor of CitiCorp USA, Inc., dated
July 27, 1998 (previously filed as Exhibit 10(b)(iv) to the
Company's Form S-1 and incorporated herein by reference)
10(aa) Subsidiary Guaranty Made by Elder-Beerman West Virginia,
Inc., dated July 27, 1998 (previously filed as Exhibit
10(b)(vii) to the Company's Form S-1 and incorporated
herein by reference)
21 Subsidiaries of the Company
23 Consent of Independent Auditors
24 Powers of Attorney
27 Financial Data Schedule
(b) Reports on Form 8-K
The Company filed a Current Report on Form 8-K on November 17, 1998,
disclosing that, on November 11, 1998, the Company amended its Rights
Agreement.
(c) The response to this portion of Item 14 is included as Exhibits to this
report.
* Indicates a management contract or compensatory plan or arrangement
required to be filed pursuant to Item 14 of Form 10-K.
(d) Financial Statement Schedules
All financial statement schedules are included in the consolidated
financial statements herein.
42
<PAGE> 45
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Company has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized, on the 15th day of
April, 1999.
THE ELDER-BEERMAN STORES CORP.
/s/ SCOTT J. DAVIDO
By:
--------------------------------------
Scott J. Davido
Executive Vice President,
Chief Financial Officer and
Treasurer
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, this report has been signed below by the following persons on behalf of
the Company and in the capacities indicated and on April 15, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S> <C>
* Chairman of the Board of Directors and
- --------------------------------------------- Chief Executive Officer
Frederick J. Mershad (Principal Executive Officer)
* President, Chief Operating Officer,
- --------------------------------------------- Director
John A. Muskovich
* Executive Vice President, Chief Financial
- --------------------------------------------- Officer and Treasurer (Principal
Scott J. Davido Financial Officer)
* Senior Vice President, Controller
- --------------------------------------------- (Principal Accounting Officer)
Steven D. Lipton
* Director
- ---------------------------------------------
Stewart M. Kasen
* Director
- ---------------------------------------------
Steven C. Mason
* Director
- ---------------------------------------------
Thomas J. Noonan, Jr.
* Director
- ---------------------------------------------
Bernard Olsoff
* Director
- ---------------------------------------------
Laura H. Pomerantz
* Director
- ---------------------------------------------
Jack A. Staph
* Director
- ---------------------------------------------
John J. Wiesner
</TABLE>
* 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 report on behalf of each of the
persons noted above, in the capacities indicated.
Dated: April 15, 1999 /s/ SCOTT J. DAVIDO
By:
--------------------------------------
Scott J. Davido
Attorney-in-Fact
43
<PAGE> 46
EXHIBIT INDEX
2(a) Third Amended Joint Plan of Reorganization of The Elder-Beerman
Stores Corp. and its Subsidiaries dated November 17, 1997
(previously filed as Exhibit 2 to the Company's Form 10 filed on
November 26, 1997 (the "Form 10"), and incorporated herein by
reference)
2(b) Agreement and Plan of Merger by and Among The Elder-Beerman
Stores Corp., The Elder-Beerman Acquisition Corp. and Stone &
Thomas dated June 18, 1998 (previously filed as Exhibit 2(b) to
the Company's Registration Statement on Form S-1 (File No.
333-57447) (the "Form S-1") and incorporated herein by reference)
2(c) First Amendment to Agreement and Plan of Merger By and Among The
Elder-Beerman Stores Corp., The Elder-Beerman Acquisition Corp.
and Stone & Thomas dated July 27, 1998 (previously filed as
Exhibit 2(c) to the Company's Form S-1 and incorporated herein by
reference)
3(a) Amended Articles of Incorporation (previously filed as Exhibit
3(a) to the form 10-K filed on April 30, 1998 (the "1997 Form
10-K"), and incorporated herein by reference)
3(b) Amended Code of Regulations (previously filed as Exhibit 3(b) to
the Form 10 and incorporated herein by reference)
4(a) Stock Certificate for Common Stock (previously filed as Exhibit
4(a) to the Company's Form 10/A-1 filed on January 23, 1998 (the
"Form 10/A-1") and incorporated herein by reference)
4(b) Form of Registration Rights Agreement (previously filed as
Exhibit 4(b) to the Form 10 and incorporated herein by reference)
4(c) Rights Agreement By and Between The Elder-Beerman Stores Corp.
and Norwest Bank Minnesota, N.A., dated as of December 30, 1997
(previously filed as Exhibit 4.1 to the Company's Registration
Statement on Form 8-A filed on November 17, 1998 (the "Rights
Agreement") and incorporated herein by reference)
4(d) Warrant Agreement by and Between Beerman-Peal Holdings, Inc. and
the Elder-Beerman Stores Corp. for 249,809 shares of Common Stock
at a strike price of $12.80 per share dated December 30, 1997
(previously filed as Exhibit 4(d) to the 1997 Form 10-K and
incorporated herein by reference)
4(e) Warrant Agreement by and Between Beerman-Peal Holdings, Inc. and
the Elder-Beerman Stores Corp. for 374,713 shares of Common Stock
at a strike price of $14.80 per share dated December 30, 1997
(previously filed as Exhibit 4(e) to the 1997 Form 10-K and
incorporated herein by reference)
4(f) Amendment No. 1 to the Rights Agreement, dated as of November 11,
1998 (previously filed as Exhibit 4.2 to the Form 8-A and
incorporated herein by reference)
10(a)(i) Pooling and Servicing Agreement Among The El-Bee Receivables
Corporation, The El-Bee Chargit Corp. and Bankers Trust Company,
dated December 30, 1997 (previously filed as Exhibit 10(a)(i) to
the Form 10/A-1 and incorporated herein by reference)
10(a)(ii) Series 1997-1 Supplement Among The El-Bee Receivables
Corporation, The El-Bee Chargit Corp. and Bankers Trust Company,
dated December 30, 1997 (previously filed as Exhibit 10(a)(ii) to
the Form 10/A-1 and incorporated herein by reference)
10(a)(iii) Certificate Purchase Agreement Among The El-Bee Receivables
Corporation, Corporate Receivables Corporation, The Liquidity
Providers Named Herein, CitiCorp North American, Inc. and Bankers
Trust Company, dated December 30, 1997 (previously filed as
Exhibit 10(a)(iii) to the Form 10/A-1 and incorporated herein by
reference)
10(a)(iv) Loan Agreement Among The El-Bee Receivables Corporation, The
El-Bee Chargit Corp., Bankers Trust Company, The Collateral
Investors Parties Hereto and CitiCorp North America, Inc., dated
as of December 30, 1997 (previously filed as Exhibit 10(a)(iv) to
the Form 10/A-1 and incorporated herein by reference)
44
<PAGE> 47
10(a)(v) Intercreditor Agreement By and Among The El-Bee Chargit Corp.,
The Elder-Beerman Stores Corp., Bankers Trust Company, CitiCorp
USA, Inc., CitiCorp North America, Inc., Corporate Receivables
Corporation and the Liquidity Providers Named Herein, dated as of
December 30, 1997 (previously filed as Exhibit 10(a)(v) to the
Form 10/A-1 and incorporated herein by reference)
10(a)(vi) Parent Undertaking Agreement Among The Elder-Beerman Stores Corp.
and Bankers Trust Company, dated as of December 30, 1997
(previously filed as Exhibit 10(a)(vi) to the Form 10/A-1 and
incorporated herein by reference)
10(a)(vii) Purchase Agreement (Chargit) Among The El-Bee Chargit Corp. and
The El-Bee Receivables Corporation, dated as of December 30, 1997
(previously filed as Exhibit 10(a)(vii) to the Form 10/A-1 and
incorporated herein by reference)
10(a)(viii) Purchase Agreement (Elder-Beerman) Among The Elder-Beerman Stores
Corp. and The El-Bee Chargit Corp., dated as of December 30, 1997
(previously filed as Exhibit 10(a)(viii) to the Form 10/A-1 and
incorporated herein by reference)
10(a)(ix) Subordinated Note Between The El-Bee Receivables Corporation and
The El-Bee Chargit Corp, dated December 30, 1997 (previously
filed as Exhibit 10(a)(ix) to the Form 10/A-1 and incorporated
herein by reference)
10(b)(i) Credit Agreement Among The Elder-Beerman Stores Corp., The
Lenders Party Hereto, Citibank, N.A. and CitiCorp USA, Inc.,
dated as of December 30, 1997 (previously filed as Exhibit
10(b)(i) to the Form 10/A-1 and incorporated herein by reference)
10(b)(ii) Borrower Pledge Agreement Made by The Elder-Beerman Stores Corp.
to Citibank, N.A., dated December 30, 1997 (previously filed as
Exhibit 10(b)(ii) to the Form 10/A-1 and incorporated herein by
reference)
10(b)(iii) Chargit Pledge Agreement Made By The El-Bee Chargit Corp. to
Citibank, N.A., dated December 30, 1997 (previously filed as
Exhibit 10(b)(iii) to the Form 10/A-1 and incorporated herein by
reference)
10(b)(iv) Security Agreement Made By The Elder-Beerman stores Corp., The
El-Bee Chargit Corp., The Bee-Gee Shoe Corp. in Favor of CitiCorp
USA, Inc., dated December 30, 1997 (previously filed as Exhibit
10(b)(iv) to the Form 10/A-1 and incorporated herein by
reference)
10(b)(v) Subsidiary Guaranty Made by The El-Bee Chargit Corp., dated
December 30, 1997 (previously filed as Exhibit 10(b)(v) to the
Form 10/A-1 and incorporated herein by reference)
10(b)(vi) Subsidiary Guaranty Made by The Bee-Gee Shoe Corp., dated
December 30, 1997 (previously filed as Exhibit 10(b)(vi) to the
Form 10/A-1 and incorporated herein by reference)
10(b)(vii) Form of Revolving Note (previously filed as Exhibit 10(b)(vii) to
the Form 10/A-1 and incorporated herein by reference)
10(b)(viii) Letter Agreement Re: Assignment of Account By and Between The
Elder-Beerman Stores Corp., CitiCorp USA, Inc., and Bankers Trust
Company, dated December 30, 1997 (previously filed as Exhibit
10(b)(viii) to the Form 10/A-1 and incorporated herein by
reference)
10(c) Form of Employment Agreement for Senior Vice Presidents
(previously filed as Exhibit 10(c) to the Form 10 and
incorporated herein by reference)*
10(d) Form of Employment Agreement for Executive Vice Presidents
(previously filed as Exhibit 10(d) to the Form 10 and
incorporated herein by reference)*
10(f) Form of Director Indemnification Agreement (previously filed as
Exhibit 10(f) to the Form 10 and incorporated herein by
reference)*
10(g) Form of Officer Indemnification Agreement (previously filed as
Exhibit 10(g) to the Form 10 and incorporated herein by
reference)*
45
<PAGE> 48
10(h) Form of Director and Officer Indemnification Agreement
(previously filed as Exhibit 10(h) to the Form 10 and
incorporated herein by reference)*
10(i) The Elder-Beerman Stores Corp. Equity and Performance Incentive
Plan, Effective December 30, 1997 (previously filed as Exhibit
10(i) to the 1997 Form 10-K and incorporated herein by
reference)*
10(j) Form of Restricted Stock Agreement for Non-Employee Director
(previously filed as Exhibit 10(j) to the Form 10 and
incorporated herein by reference)*
10(k) Form of Restricted Stock Agreement (previously filed as Exhibit
10(k) to the Form 10 and incorporated herein by reference)*
10(l) Form of Deferred Shares Agreement (previously filed as Exhibit
10(l) to the Form 10 and incorporated herein by reference)*
10(m) Form of Nonqualified Stock Option Agreement for Non-Employee
Director (previously filed as Exhibit 10(m) to the Form 10 and
incorporated herein by reference)*
10(n) Form of Nonqualified Stock Option Agreement (previously filed as
Exhibit 10(n) to the Form 10 and incorporated herein by
reference)*
10(o) Employee Stock Purchase Plan (previously filed as Exhibit 10(o)
to the Form 10 and incorporated herein by reference)*
10(p) Comprehensive Settlement Agreement By and Among The Debtors, The
ESOP and the ESOP Committee and the Shareholders of The
Elder-Beerman Stores Corp., dated as of December 30, 1997
(previously filed as Exhibit 10(p) to the 1997 Form 10-K and
incorporated herein by reference)
10(q) Tax Indemnification Agreement By and Among The Elder-Beerman
Stores Corp., the Direct and Indirect Subsidiaries of
Elder-Beerman, Beerman-Peal Holdings, Inc., The Beerman-Peal
Corporation, Beerman Investments, Inc., The Beerman Corporation
and The Individuals, Partnerships and Trusts named Herein dated
as of December 15, 1997 (previously filed as Exhibit 10(q) to the
Form 10 and incorporated herein by reference)
10(r) Tax Sharing Agreement By and Among The Elder-Beerman Stores
Corp., The Bee-Gee Shoe Corp. and The El-Bee Chargit Corp., dated
as of December 30, 1997 (previously filed as Exhibit 10(r) to the
Form 10 and incorporated herein by reference)
10(s) Employment Agreement Between The Elder-Beerman Stores Corp. and
John A. Muskovich, dated December 30, 1997 (previously filed as
Exhibit 10(s) to the 1997 Form 10-K and incorporated herein by
reference)*
10(t) Amended and Restated Employment Agreement Between The
Elder-Beerman Stores Corp. and Frederick J. Mershad, dated
December 30, 1997 (previously filed as Exhibit 10(t) to the 1997
Form 10-K and incorporated herein by reference)*
10(u) Employment Agreement Between The Elder-Beerman Stores Corp. and
James M. Zamberlan, dated December 30, 1997*
10(v) Employment Agreement Between The Elder-Beerman Stores Corp. and
Scott J. Davido, dated December 30, 1997*
10(w) Amended and Restated Employment Agreement Between The
Elder-Beerman Stores Corp. and Scott J. Davido, dated March 15,
1999*
10(x) Employment Agreement Between The Elder-Beerman Stores Corp. and
Steven D. Lipton, dated December 30, 1997*
10(y) Amended and Restated Credit Agreement Among The Elder-Beerman
Stores Corp., The Lenders Party Thereto, Citibank, N.A. and
CitiCorp USA, Inc., dated as of July 27, 1998 (previously filed
as Exhibit 10(b)(i) to the Company's Form S-1 and incorporated
herein by reference)
10(z) Amended and Restated Security Agreement Made By The Elder-Beerman
Stores Corp., The El-Bee Chargit Corp., The Bee-Gee Shoe Corp. in
Favor of CitiCorp USA, Inc.,
46
<PAGE> 49
dated July 27, 1998 (previously filed as Exhibit 10(b)(iv) to the
Company's Form S-1 and incorporated herein by reference)
10(aa) Subsidiary Guaranty Made by Elder-Beerman West Virginia, Inc.,
dated July 27, 1998 (previously filed as Exhibit 10(b)(vii) to
the Company's Form S-1 and incorporated herein by reference)
21 Subsidiaries of the Company
23 Consent of Independent Auditors
24 Powers of Attorney
27 Financial Data Schedule
<PAGE> 1
Exhibit 10(u)
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT FOR JAMES M. ZAMBERLAN
THIS AGREEMENT, dated as of the 30th day of December, 1997,
between The Elder-Beerman Stores Corp., an Ohio corporation (the "Employer"),
and James M. Zamberlan (the "Executive").
R E C I T A L S :
1. On October 17, 1995, Employer and its subsidiaries
(collectively, the "Debtors") filed voluntarily petitions for relief under
chapter 11 of the Bankruptcy Code, 11 U.S.C. section section 101-1330 (the
"Bankruptcy Code"). The Debtors continue to manage and operate their businesses
as debtors in possession pursuant to sections 1107 and 1108 of the Bankruptcy
Code. Employer's chapter 11 case is pending in the United States Bankruptcy
Court for the Southern District of Ohio, Western Division (the "Bankruptcy
Court"). On December 16, 1997, the Bankruptcy Court entered an order (the
"Confirmation Order") confirming the Third Amended Joint Plan of Reorganization
of The Elder-Beerman Stores Corp. and Its Subsidiaries, dated November 17, 1997,
as subsequently modified (the "Plan").
2. Employer and Executive have previously entered into an
Employment Agreement dated August 19, 1997.
3. Employer and Executive want to enter into this Amended and
Restated Employment Agreement, subject to the terms and conditions set forth
below. Employer is entering into this Amended and Restated Employment Agreement
pursuant to authority provided under the Plan and the Confirmation Order.
NOW THEREFORE, in consideration of the foregoing and the
mutual covenants herein and for good and valuable consideration, the receipt of
which is hereby acknowledged, it is agreed as follows:
<PAGE> 2
ARTICLE I
---------
DEFINITIONS
-----------
The following terms shall have the respective meanings set forth below,
unless the context clearly otherwise requires:
1.1 "AFFILIATE" means, with respect to a particular Entity, an Entity
that directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, such Entity, and an Entity shall
be "unaffiliated" with another Entity if such Entities are not Affiliates with
respect to one another.
1.2 "CAUSE" means (i) an intentional act of fraud, embezzlement, theft
or any other material violation of law in connection with Executive's duties or
in the course of his employment with Employer involving material harm to
Employer; (ii) intentional wrongful damage to material assets of Employer; (iii)
intentional wrongful engagement in any activity that would constitute a material
breach of Sections 3.1 through 3.4 hereof; or (iv) physical or mental disability
that causes Executive to fail to perform his duties under this Agreement for a
continuous period of 12 months, as provided in Section 2.7(b). No act or
omission by Executive shall be deemed "intentional" if it was due to negligence
and shall be deemed "intentional" only if done, or omitted to be done, by
Executive not in good faith and without reasonable belief that his action or
omission was in or not opposed to the best interests of Employer and its
subsidiaries. Failure to meet performance standards or objectives of Employer
shall not constitute "Cause" for purposes hereof. To terminate the employment of
Executive for Cause, Employer must deliver to Executive a Notice of Termination
given within 90 days after the Board of Directors both (i) has knowledge of
conduct or an event allegedly constituting Cause and (ii) has reason to believe
that such conduct or event could be grounds for Cause. For purposes of this
Agreement a "Notice of Termination" shall mean a copy of a resolution duly
adopted by the affirmative vote of not less than a simple majority of the
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membership of the Board of Directors, excluding Executive, at a meeting called
for the purpose of determining that Executive has engaged in conduct that
constitutes Cause (and at which Executive had a reasonable opportunity, together
with his counsel, to be heard before the Board of Directors prior to such vote).
1.3 "CHANGE OF OWNERSHIP" means any one of the following events: (i)
the sale to any purchaser unaffiliated with Employer of all or substantially all
of the assets of Employer; (ii) the sale, distribution, or accumulation of more
than 50% of the outstanding voting stock of Employer to/by any acquiror or group
of affiliated acquirors that are unaffiliated with Employer; (iii) individuals
who, on the completion of Employer's chapter 11 reorganization under the
Bankruptcy Code, constitute the Board of Directors (the "Incumbent Directors")
cease for any reason to constitute at least a majority of the Board, provided
that any person becoming a director subsequent to such completion whose election
or nomination for election was approved by a vote of at least two-thirds of the
Incumbent Directors then on the Board (either by a specific vote or by approval
of the proxy statement of Employer in which such person is named as a nominee
for director, without objection to such nomination) shall be an Incumbent
Director; PROVIDED, HOWEVER, that no individual elected or nominated as a
director of Employer initially as a result of an actual or threatened election
contest with respect to directors or any other actual or threatened solicitation
of proxies or consents by or on behalf of any person other than the Board shall
be deemed to be an Incumbent Director; or (iv) the merger or consolidation of
Employer with another Entity unaffiliated with Employer if, immediately after
such merger or consolidation, less than a majority of the combined voting power
of the then outstanding securities of such Entity are held, directly or
indirectly, in the aggregate by the holders immediately prior to such
transaction of the then outstanding securities of Employer entitled to vote
generally in the election of directors.
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In no event shall "Change of Ownership" be construed to include any
change of control of Employer or any subsidiary of Employer that occurs solely
as a result of any exchange or distribution of equity securities of Employer or
any such subsidiary upon consummation of a plan of reorganization for Employer
or any such subsidiary in its chapter 11 case pending as of the date of this
Agreement.
1.4 "CODE" means the Internal Revenue Code of 1986, as amended.
1.5 "COMPETING BUSINESS" means any of the following companies: (i)
Mercantile Stores Co., Inc.; Proffitt's, Inc.; or Carson Pirie Scott & Co.,
including each of their respective Affiliates; (ii) Lazarus, Inc.; (iii) Lazarus
PA, Inc.; or (iv) Rich's Department Stores, Inc.
1.6 "ENTITY" shall have the meaning provided in section 101(16) of the
Bankruptcy Code.
1.7 "GOOD REASON" means (i) the assignment to Executive of any duties
materially inconsistent with Executive's position (including status, offices,
titles and reporting requirements), authority, duties or responsibilities as
contemplated in Article II, or any other action by Employer that results in a
material diminution in such position, authority, duties or responsibilities,
excluding for this purpose an action not taken in bad faith and that is remedied
by Employer within 10 days after receipt of written notice thereof given by
Executive, provided that repeated instances of such action shall be evidence of
the bad faith of Employer; (ii) a reduction in the Executive's annual Base
Salary of at least 10%; (iii) the relocation of Employer's principal executive
offices to a location more than 75 miles from the current location of such
offices; (iv) any material failure by Employer to comply with any of the
provisions of this Agreement, other than a failure not occurring in bad faith
and which is remedied by Employer within 10 days after receipt of written notice
thereof given by Executive, provided that repeated failures shall be evidence of
the bad faith of Employer; or (v) removal of Executive as Executive Vice
President - Stores, other than for Cause.
ARTICLE II
----------
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EMPLOYMENT
----------
2.1 EFFECTIVENESS. Notwithstanding any other provision of the
Agreement, the Agreement shall not be effective until the Effective Date (as
such term is defined in the Plan).
2.2 TERM. Employer shall employ Executive, and Executive shall serve
Employer pursuant to the terms of this Agreement, starting on the Effective
Date. The term of this Agreement shall extend initially until the third
anniversary of the Effective Date. The term of this Agreement shall be
automatically extended on the third anniversary of the Effective Date and each
anniversary of the Effective Date thereafter for a period of one year unless
Employer or Executive shall have given written notice of termination to the
other not less than 120 days prior to such anniversary of the Effective Date.
Upon termination of this Agreement pursuant to any such notice, Executive's
employment with Employer shall terminate, and Employer's only obligation to
Executive will be payment of the amounts described in Section 2.7(c)(ii).
2.3 DUTIES. Executive will serve as and perform the duties of Executive
Vice President Stores of Employer in accordance with the terms of this
Agreement. The duties of Executive shall be those commensurate with his office
and shall include those responsibilities reasonably assigned to Executive by the
Chairman or President of the Employer, with responsibility for reporting to the
Chairman or President of the Employer.
2.4 COMPENSATION. In consideration of Executive's services hereunder,
Employer shall pay Executive cash compensation consisting of an annual "Base
Salary" and "Bonus." As of the Effective Date, Executive's Base Salary shall be
$250,000.00 per year, and his 1997 fiscal year Bonus shall consist of an
incentive bonus that includes a pro rata share, based on the percentage of days
served in fiscal 1997, of an incentive bonus of up to 30% of Executive's Base
Salary, to be earned as determined by the Board of Directors. In each fiscal
year thereafter, Executive shall participate in the Employer's Equity and
Performance Incentive Plan and Executive's Bonus
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thereunder shall consist of an incentive bonus of up to 35% of his Base Salary,
to be earned as determined by the Board of Directors pursuant to the provisions
of such plan. For purposes of the preceding sentences, the "year" for which the
Bonus is payable to Executive shall be the Employer's fiscal year beginning in
February 1997 and each subsequent fiscal year of the Employer. Executive's Base
Salary shall be subject to review at the discretion of the Board of Directors
from time to time taking into account changes in Executive's responsibilities,
increases in the cost of living, performance by Executive, increases in salary
to other executives of Employer and other pertinent factors.
2.5 PAYMENT SCHEDULE. The Compensation specified in Section 2.4 hereof
shall be payable as current salary and bonus in accordance with Employer's
payroll and bonus procedures for other executives. Base Salary shall be paid in
installments not less frequently than monthly and at the same rate for any
fraction of a month unexpired at the end of the term. Bonuses shall be paid
annually in a lump sum not later than April 15 or, if such day is not a business
day on which the Employer's executive offices are open, the first business day
thereafter.
2.6 EXPENSES. Executive shall be allowed reasonable traveling expenses
and other reasonable expenses in carrying out his duties under this Agreement
and shall be furnished office space, assistance and accommodations suitable to
the character of his position with Employer and adequate for the performance of
his duties hereunder.
2.7 TERMINATION OF EMPLOYMENT.
(a) TERMINATION FOLLOWING A CHANGE OF OWNERSHIP. If (i) before the
second anniversary of a Change of Ownership Employer notifies Executive that
Executive is being terminated, and such termination is without Cause; (ii)
before the second anniversary of a Change of Ownership Executive terminates his
employment for Good Reason; (iii) Executive terminates his employment with
Employer for any reason, or without reason, during the 30-day period immediately
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<PAGE> 7
following the first anniversary of a Change of Ownership; or (iv) Executive's
employment with Employer is terminated in connection with but prior to a Change
of Ownership and termination occurs following the commencement of any discussion
with any third party that ultimately results in a Change of Ownership, Executive
shall be entitled (except as otherwise provided in paragraphs (b), (c) and (d)
of this Section 2.7 and subject to Section 5.1) to receive a lump sum payment as
severance compensation equal to the greater of (I) 2.99 times his "base amount"
as such term is defined in Section 280G of the Code, or (II) 2 times his most
recent Base Salary and Bonus. Employer shall make such payment not later than 45
days after the date of termination. If any payment made to the Executive
pursuant to this Section 2.7(a) or otherwise pursuant to or by reason of any
other agreement, policy, plan, program or arrangement, including without
limitation any stock option, stock appreciation right or similar right, or the
lapse or termination of any restriction on or the vesting or exercisability of
any of the foregoing (a "Payment") is determined to be subject to the excise tax
imposed by Section 4999 of the Code (or any successor provision thereto) by
reason of being considered "contingent on a change in ownership or control" of
the Employer, within the meaning of Section 280G of the Code (or any successor
provision thereto) or to any similar tax imposed by state or local law, or to
any interest or penalties with respect to such tax (such tax or taxes, together
with any such interest and penalties, being hereafter collectively referred to
as the "Excise Tax"), then the Executive shall be entitled to receive an
additional payment or payments (collectively, a "280G Gross-Up Payment"). The
280G Gross-Up Payment shall be in an amount such that, after payment by the
Executive of all taxes (including any interest or penalties imposed with respect
to such taxes), including any excise tax imposed upon the 280G Gross-Up Payment,
the Executive retains a portion of the 280G Gross-Up Payment equal to the Excise
Tax imposed upon the Payment.
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<PAGE> 8
(b) DISABILITY. Executive shall not be in breach of this Agreement
if he shall fail to perform his duties hereof because of physical or mental
disability. If Executive fails to render services to Employer because of
Executive's physical or mental disability for a continuous period of 12 months,
the Board of Directors or its delegate may terminate Executive's employment
prior to the end of the then current term. If any dispute exists between the
parties as to Executive's physical or mental disability at any time, such
question shall be settled by the opinion of an impartial reputable physician
agreed upon for that purpose by the parties or their representatives. Failing
agreement upon an impartial physician for purposes of the preceding sentence,
the question of Executive's physical or mental disability shall be resolved
within 10 days of a written request therefor by either party to the other, by a
physician designated by the then Executive Vice President of the Ohio Academy of
Family Physicians. The written opinion of the physician as to the matter in
dispute shall be final and binding on the parties.
(c) OTHER TERMINATIONS BY EMPLOYER. (i) CAUSE. Employer may
terminate the employment of Executive for Cause at any time upon notice given
pursuant to Section 5.6. Upon such termination, this Agreement and all of
Employer's obligations under this Agreement shall terminate, except that
Employer shall remain obligated to pay to Executive any unpaid Base Salary
through the effective date of such termination and any vacation accrued but
unused as of Executive's last day worked.
(ii) NOT FOR CAUSE. Employer may terminate the employment of
Executive at any time for any reason. However, if such termination of employment
does not occur pursuant to Section 2.2 or under the circumstances described in
paragraphs (a), (b) or (c)(i) of this Section 2.7, Employer shall remain
obligated to Executive for (I) payment of Executive's unpaid Base Salary (as
described in Section 2.4) through the then-remaining term of this Agreement
pursuant to Section 2.2,
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(II) any Bonus (as described in Section 2.4) paid on or before Executive's last
day worked and (III) payment for any vacation accrued but unused as of
Executive's last day worked.
(d) DEATH. If Executive dies while rendering services under
this Agreement, there shall be payable to his estate an amount equal to his Base
Salary for the lesser of one year or the then remaining term of this Agreement.
Such amount shall be paid to Executive's estate in a single lump sum.
2.8 MITIGATION; OFFSET. Executive shall not be required to mitigate the
amount of any payment or benefit provided for in the Agreement by seeking other
employment or otherwise. However, any amount payable pursuant to this Agreement
following the termination of Executive's employment shall reduce any amount
payable by Employer to or with respect to Executive pursuant to any other
severance pay or other similar plan, program or arrangement of Employer,
including, without limitation, the Employer's Master Severance Plan for Key
Employees.
ARTICLE III
-----------
CERTAIN OBLIGATIONS OF EXECUTIVE
--------------------------------
3.1 NO PARTICIPATION IN OTHER BUSINESSES. Executive shall not, without
the consent of the Board of Directors, become actively associated with or
engaged in any business other than that of Employer or a division or Affiliate
of Employer, and he shall do nothing inconsistent with his duties to Employer.
3.2 TRADE SECRETS AND CONFIDENTIAL INFORMATION.
(a) UNAUTHORIZED DISCLOSURE, USE OR SOLICITATION. Executive
will keep in strict confidence, and will not, directly or indirectly, at any
time during or after his employment with Employer, disclose, furnish,
disseminate, make available or, except in the course of performing his duties of
employment under this Agreement, use any trade secrets or confidential business
and technical information of Employer or its customers, vendors or property
owners or managers,
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without limitation as to when or how Executive may have acquired such
information. Such confidential information will include, without limitation,
Employer's unique selling methods and trade techniques; management, training,
marketing and selling manuals; promotional materials; training courses and other
training and instructional materials; any personnel information; material
nonpublic financial information; any corporate organizational information; lease
terms; vendor, owner, manager and product information; customer lists; other
customer information; and other trade information. Executive specifically
acknowledges that all such confidential information including, without
limitation, customer lists, other customer information and other trade
information, whether reduced to writing, maintained on any form of electronic
media, or maintained in the mind or memory of Executive and whether compiled by
Employer and/or Executive, derives independent economic value from not being
readily known to or ascertainable by proper means by others who can obtain
economic value from its disclosure or use, that reasonable efforts have been
made by Employer to maintain the secrecy of such information, that such
information is the sole property of Employer and that any retention and use of
such information by Executive during his employment with Employer (except in the
course of performing his duties and obligations under this Agreement) or after
the termination of his employment will constitute a misappropriation of
Employer's trade secrets.
(b) POST-TERMINATION. Executive agrees that, upon termination of
Executive's employment with Employer, for any reason, Executive will return to
Employer, in good condition, all property of Employer, including without
limitation, the originals and all copies of all management, training, marketing
and selling manuals; promotional materials; other training and instructional
materials; financial information; vendor, owner, manager and product
information; customer lists; other customer information; and all other selling,
service and trade information and equipment. If such items are not returned,
Employer will have the right to charge Executive for all
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reasonable damages, costs, attorneys' fees and other expenses incurred in
searching for, taking, removing and/or recovering such property.
3.3 NONCOMPETITION. Executive and Employer recognize that Executive's
duties under this Agreement will entail the receipt of trade secrets and
confidential information, which include not only information concerning
Employer's current operations, procedures, suppliers and other contacts, but
also its short-range and long-range plans, and that such trade secrets and
confidential information may have been developed by Employer and its Affiliates
at substantial cost and constitute valuable and unique property of Employer.
Accordingly, Executive acknowledges that the foregoing makes it reasonably
necessary for the protection of Employer's business interests that Executive not
compete with Employer or any of its Affiliates during the term of this Agreement
and for a reasonable and limited period thereafter. Therefore, during the term
of this Agreement and for one year after termination of the Agreement, Executive
shall not have any investment in a Competing Business other than a de minimus
investment and shall not render personal services to any such Competing Business
in any manner, including, without limitation, as owner, partner, director,
trustee, officer, employee, consultant or advisor thereof; PROVIDED, HOWEVER,
that this Section 3.3 shall not apply if Executive terminates his employment for
Good Reason or Employer terminates Executive other than for Cause. For purposes
of the preceding sentence, a de minimus investment is ownership of less than 1/2
of 1% of the outstanding stock or debt of any Competing Business.
Notwithstanding Section 2.7 above, if Executive shall breach the
covenants contained in this Section 3.3 or in Section 3.2, Employer shall have
no further obligations to Executive pursuant to this Agreement and may recover
from Executive all such damages as it may be entitled to at law or in equity. In
addition, Executive acknowledges that any such breach is likely to result in
immediate and irreparable harm to Employer for which money damages are likely to
be inadequate.
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Accordingly, Executive consents to injunctive and other appropriate equitable
relief that Employer may seek to protect Employer's rights under this Agreement.
Such relief may include, without limitation, an injunction to prevent Executive
from disclosing any trade secrets or confidential information concerning
Employer to any Entity, to prevent any Entity from receiving from Executive or
using any such trade secrets or confidential information and/or to prevent any
Entity from retaining or seeking to retain any other employees of Employer.
3.4 CONFLICTS OF INTEREST. Executive shall not engage in any activity
that would violate any Conflict of Interest or Business Ethics Statement of
Employer that Executive may sign from time to time.
ARTICLE IV
----------
OTHER BENEFITS
--------------
4.1 EMPLOYEE BENEFITS.
(a) Executive and Executive's family, as applicable, shall be
eligible for participation in and shall receive all benefits under the savings
and retirement programs, welfare benefit plans, fringe benefit programs and
perquisites that Employer provides to senior executives of Employer in effect
from time to time.
(b) Subject to Section 5.1, upon termination under Section 2.7(a)
hereof:
(i) The benefits described in Section 4.1(a) will continue
until the Executive obtains new employment providing substantially similar
benefits, but in any event no later than two years after the date of
termination. During the period of continued coverage pursuant to this
Subsection, the Executive will be required to pay the same cost of coverage,
co-pays, deductibles and other similar payments paid by active senior executives
of the Company having elected the same type of coverage. The Executive will
cease to be eligible for continued health and
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life insurance benefits provided by the Employer if he (I) waives such coverage
or (II) fails to pay any amount required for such coverage.
(ii) The Executive will be reimbursed by the Employer for
reasonable expenses incurred for outplacement counseling (I) that are
pre-approved by the Employer's Senior Vice President - Human Resources, (II)
that do not exceed 15% of the Executive's Base Salary and (III) that are
incurred by the Executive within 6 months following such termination.
4.2 RELOCATION. Executive shall relocate to a residence within 25 miles
of downtown Dayton, Ohio. Payments and reimbursements made on behalf of or to
Executive on account of such relocation shall be made in accordance with the
Employer's applicable relocation policy for transferred employees.
4.3 VACATION AND SICK LEAVE. Executive shall be entitled to vacation
and sick leave each year, in accordance with Employer's policies in effect from
time to time; provided, however, that Executive shall be entitled to a minimum
of four weeks vacation per year.
ARTICLE V
---------
MISCELLANEOUS
-------------
5.1 RELEASE. Payment of the amount described in Section 2.7(a) and the
benefits described in Section 4.1(b) to the Executive is conditioned upon the
Executive executing and delivering a release satisfactory to the Employer
releasing the Employer from any and all claims, demands, damages, actions and/or
causes of action whatsoever, which the Executive may have had on account of the
termination of his employment, including, but not limited to claims of
discrimination, including on the basis of sex, race, age, national origin,
religion, or handicapped status (with all applicable periods during which the
Executive may revoke the release or any provision thereof having expired), and
any and all claims, demands and causes of action for retirement (other than
under the retirement plans maintained by the Employer that are qualified
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under Section 401(a) of the Code or under any "welfare benefit plan" of the
Employer (as the term "welfare benefit plan" is defined in Section 3(1) of the
Employee Retirement Income Security Act of 1974, as amended)), severance or
other termination pay. Such release will not, however, apply to the ongoing
obligations of the Employer arising under this Agreement, or rights of
indemnification the Executive may have under the Employer's policies or by
contract or by statute.
5.2 SUCCESSORS AND BINDING AGREEMENT.
(a) Employer will require any successor to all or substantially all
of the businesses or assets of Employer (whether direct or indirect, by
purchase, merger, consolidation, reorganization or otherwise), by agreement in
form and substance reasonably satisfactory to Executive, expressly to assume and
agree to perform this Agreement in the same manner and to the same extent
Employer would be required to perform if no such succession had taken place.
This Agreement will be binding upon and inure to the benefit of Employer and any
successor to Employer, including without limitation any persons acquiring
directly or indirectly all or substantially all of the businesses or assets of
Employer whether by purchase, merger, consolidation, reorganization or otherwise
(and such successor will thereafter be deemed "Employer" for the purposes of
this Agreement).
(b) This Agreement will inure to the benefit of and be enforceable
by the Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees and legatees.
(c) This Agreement is personal in nature and neither of the parties
hereto will, without the consent of the other, assign, transfer or delegate this
Agreement or any rights or obligations hereof except as expressly provided in
Sections 5.2(a) and (b). Without limiting the generality or effect of the
foregoing, Executive's right to receive payments hereof will not be assignable,
transferable or delegable, whether by pledge, creation of a security interest,
or otherwise, other than by a transfer by Executive's will or by the laws of
descent and distribution and, if
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Executive attempts any assignment or transfer contrary to this Section 5.2,
Employer will have no liability to pay any amount Executive attempts to assign,
transfer or delegate.
5.3 GOVERNING LAW; ARBITRATION. This Agreement has been executed on
behalf of Employer by an officer of Employer located in the City of Moraine,
Ohio. This Agreement and all questions arising in connection with it shall be
governed by the internal substantive law of the State of Ohio, without giving
effect to principles of conflict of laws. Subject to the following sentence, all
disputes arising out of, or in connection with this Agreement, which are not
promptly settled by mutual agreement of the parties hereto, shall be finally
settled by arbitration in accordance with the rules of the American Arbitration
Association. Notwithstanding, Employer may, at its option, seek injunctive
relief as contemplated in Section 3.3 above either in lieu of or in addition to
the arbitration remedies provided for in this Section 5.3
Arbitration shall be conducted by one or more arbitrators appointed in
accordance with such rules on the request of any party to the agreement giving
rise to the dispute. Arbitration shall take place in Dayton, Ohio. Such
arbitration shall be governed by this Agreement and shall be binding upon the
parties hereto. The validity, construction, performance or termination of any
agreement by and between the parties submitted to arbitration shall be
determined on the basis of the contractual obligations of the parties. The
arbitrator shall determine his jurisdiction over persons and subject matter if
such jurisdiction is challenged by one of the parties. The award of the
arbitrator shall: (a) be rendered in writing stating the grounds on which the
arbitrators base same, and how the costs of arbitration are being borne; the
expenses of Executive to successfully petition or defend his interests shall be
borne by Employer; and (b) be carried out voluntarily and without delay, and
failing this, be made enforceable through either party by entry of a judgment in
a competent court of any jurisdiction.
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5.4 SEVERABILITY. If any portion of this Agreement is held to be
invalid or unenforceable, such holding shall not affect any other portion of
this Agreement.
5.5 ENTIRE AGREEMENT. This Agreement comprises the entire agreement
between the parties hereto and, as of the date hereof, supersedes any prior
agreements between the parties. This Agreement may not be modified, renewed or
extended except by a written instrument referring to this Agreement and executed
by the parties hereto.
5.6 NOTICES. Any notice or consent required or permitted to be given
under this Agreement shall be in writing and shall be effective: (a) when given
by personal delivery, (b) one business day after being sent by overnight
delivery service or (c) five business days after being sent by certified U.S.
mail, return receipt requested, to the Secretary of Employer at its principal
place of business in the City of Moraine or to Executive at his last known
address as shown on the records of Employer.
5.7 WITHHOLDING TAXES. Employer may withhold from any amounts payable
under this Agreement all federal, state, city or other taxes as shall be
required pursuant to any law or governmental regulation or ruling.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date and year first above written.
THE ELDER-BEERMAN STORES CORP.
By:_________________________________
Frederick J. Mershad
Chairman and Chief Executive Officer
____________________________________
James M. Zamberlan
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Exhibit 10(v)
EMPLOYMENT AGREEMENT FOR SCOTT J. DAVIDO
THIS AGREEMENT, dated as of the 30th day of December, 1997, between
The Elder-Beerman Stores Corp., an Ohio corporation (the "Employer"), and Scott
J. Davido (the "Executive").
R E C I T A L S :
1. On October 17, 1995, Employer and its subsidiaries
(collectively, the "Debtors") filed voluntarily petitions for relief under
chapter 11 of the Bankruptcy Code, 11 U.S.C. sections 101-1330 (the "Bankruptcy
Code"). The Debtors continue to manage and operate their businesses as debtors
in possession pursuant to sections 1107 and 1108 of the Bankruptcy Code.
Employer's chapter 11 case is pending in the United States Bankruptcy Court for
the Southern District of Ohio, Western Division (the "Bankruptcy Court"). On
December 16, 1997, the Bankruptcy Court entered an order (the "Confirmation
Order") confirming the Third Amended Joint Plan of Reorganization of The
Elder-Beerman Stores Corp. and Its Subsidiaries, dated November 17, 1997, as
subsequently modified (the "Plan").
2. Employer has determined that it is critical to the success of
its efforts to reorganize under chapter 11 that it select the most qualified
person to serve as Senior Vice President, General Counsel and Secretary for
Employer upon the Effective Date (as defined in the Plan).
3. Employer wants to enter into this Agreement with Executive based
on its belief that Executive is uniquely qualified to assume the role of Senior
Vice President, General Counsel and Secretary upon the Effective Date, subject
to the terms and conditions set forth below.
4. Executive wants to enter into this Agreement with Employer,
subject to the terms and conditions set forth below. Employer is entering into
this Employment Agreement pursuant to authority provided under the Plan and the
Confirmation Order.
<PAGE> 2
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants herein and for good and valuable consideration, the receipt of which
is hereby acknowledged, it is agreed as follows:
ARTICLE I
---------
DEFINITIONS
-----------
The following terms shall have the respective meanings set forth
below, unless the context clearly otherwise requires:
1.1 "AFFILIATE" means, with respect to a particular Entity, an
Entity that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such Entity, and an
Entity shall be "unaffiliated" with another Entity if such Entities are not
Affiliates with respect to one another.
1.2 "CAUSE" means (i) an intentional act of fraud, embezzlement,
theft or any other material violation of law in connection with Executive's
duties or in the course of his employment with Employer involving material harm
to Employer; (ii) intentional wrongful damage to material assets of Employer;
(iii) intentional wrongful engagement in any activity that would constitute a
material breach of Sections 3.1 through 3.4 hereof; or (iv) physical or mental
disability that causes Executive to fail to perform his duties under this
Agreement for a continuous period of 12 months, as provided in Section 2.7(b).
No act or omission by Executive shall be deemed "intentional" if it was due to
negligence and shall be deemed "intentional" only if done, or omitted to be
done, by Executive not in good faith and without reasonable belief that his
action or omission was in or not opposed to the best interests of Employer and
its subsidiaries. Failure to meet performance standards or objectives of
Employer shall not constitute "Cause" for purposes hereof. To terminate the
employment of Executive for Cause, Employer must deliver to Executive a Notice
of Termination given within 90 days after the Board of Directors both (i) has
knowledge of conduct or an event
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allegedly constituting Cause and (ii) has reason to believe that such conduct or
event could be grounds for Cause. For purposes of this Agreement a "Notice of
Termination" shall mean a copy of a resolution duly adopted by the affirmative
vote of not less than a simple majority of the membership of the Board of
Directors, excluding Executive, at a meeting called for the purpose of
determining that Executive has engaged in conduct that constitutes Cause (and at
which Executive had a reasonable opportunity, together with his counsel, to be
heard before the Board of Directors prior to such vote).
1.3 "CHANGE OF OWNERSHIP" means any one of the following events: (i)
the sale to any purchaser unaffiliated with Employer of all or substantially all
of the assets of Employer; (ii) the sale, distribution, or accumulation of more
than 50% of the outstanding voting stock of Employer to/by any acquiror or group
of affiliated acquirors that are unaffiliated with Employer; (iii) individuals
who, on the completion of Employer's chapter 11 reorganization under the
Bankruptcy Code, constitute the Board of Directors (the "Incumbent Directors")
cease for any reason to constitute at least a majority of the Board, provided
that any person becoming a director subsequent to such completion whose election
or nomination for election was approved by a vote of at least two-thirds of the
Incumbent Directors then on the Board (either by a specific vote or by approval
of the proxy statement of Employer in which such person is named as a nominee
for director, without objection to such nomination) shall be an Incumbent
Director; PROVIDED, HOWEVER, that no individual elected or nominated as a
director of Employer initially as a result of an actual or threatened election
contest with respect to directors or any other actual or threatened solicitation
of proxies or consents by or on behalf of any person other than the Board shall
be deemed to be an Incumbent Director; or (iv) the merger or consolidation of
Employer with another Entity unaffiliated with Employer if, immediately after
such merger or consolidation, less than a majority of the combined voting power
of the then outstanding securities of such Entity are held, directly or
indirectly, in the aggregate by
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the holders immediately prior to such transaction of the then outstanding
securities of Employer entitled to vote generally in the election of directors.
In no event shall "Change of Ownership" be construed to include any
change of control of Employer or any subsidiary of Employer that occurs solely
as a result of any exchange or distribution of equity securities of Employer or
any such subsidiary upon consummation of a plan of reorganization for Employer
or any such subsidiary in its chapter 11 case pending as of the date of this
Agreement.
1.4 "CODE" means the Internal Revenue Code of 1986, as amended.
1.5 "COMPETING BUSINESS" means any of the following companies: (i)
Mercantile Stores Co., Inc.; Proffitt's, Inc.; or Carson Pirie Scott & Co.,
including each of their respective Affiliates; (ii) Lazarus, Inc.; (iii) Lazarus
PA, Inc.; or (iv) Rich's Department Stores, Inc.
1.6 "ENTITY" shall have the meaning provided in section 101(16) of the
Bankruptcy Code.
1.7 "GOOD REASON" means (i) the assignment to Executive of any duties
materially inconsistent with Executive's position (including status, offices,
titles and reporting requirements), authority, duties or responsibilities as
contemplated in Article II, or any other action by Employer that results in a
material diminution in such position, authority, duties or responsibilities,
excluding for this purpose an action not taken in bad faith and which is
remedied by Employer within 10 days after receipt of written notice thereof
given by Executive, provided that repeated instances of such action shall be
evidence of the bad faith of Employer; (ii) a reduction in the Executive's
annual Base Salary of at least 10%; (iii) the relocation of Employer's principal
executive offices to a location more than 75 miles from the current location of
such offices; (iv) any material failure by Employer to comply with any of the
provisions of this Agreement, other than a failure not occurring in bad faith
and that is remedied by Employer within 10 days after receipt of written notice
thereof given
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by Executive, provided that repeated failures shall be evidence of the bad faith
of Employer; or (v) removal of Executive as Senior Vice President, General
Counsel and Secretary, other than for Cause.
ARTICLE II
----------
EMPLOYMENT
----------
2.1 EFFECTIVENESS. Notwithstanding any other provision of the
Agreement, the Agreement shall not be effective until the Effective Date.
2.2 TERM. Employer shall employ Executive, and Executive shall serve
Employer pursuant to the terms of this Agreement, starting on the Effective
Date. The term of this Agreement shall extend initially until the third
anniversary of the Effective Date. The term of this Agreement shall be
automatically extended on the third anniversary of the Effective Date and each
anniversary of the Effective Date thereafter for a period of one year unless
Employer or Executive shall have given written notice of termination to the
other not less than 120 days prior to such anniversary of the Effective Date.
Upon termination of this Agreement pursuant to any such notice, Executive's
employment with Employer shall terminate, and Employer's only obligation to
Executive will be payment of the amounts described in Section 2.7(c)(ii).
2.3 DUTIES. Executive will serve as and perform the duties of Senior
Vice President, General Counsel and Secretary of Employer in accordance with the
terms of this Agreement. The duties of Executive shall be those commensurate
with his office and shall include those responsibilities reasonably assigned to
Executive by the Chairman or President of the Employer, with responsibility for
reporting to the Chairman or President of the Employer.
2.4 COMPENSATION. In consideration of Executive's services hereunder,
Employer shall pay Executive a one-time cash signing bonus of $25,000.00,
payable at the option of the Executive after the Effective Date, and cash
compensation consisting of an annual "Base Salary" and "Bonus." As of the
Effective Date, Executive's Base Salary shall be $175,000.00 per year, and his
1997 fiscal
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year Bonus shall consist of an incentive bonus that includes pro rata share,
based on the percentage of days served during fiscal 1997, of up to 30% of
Executive's Base Salary, to be earned as determined by the Board of Directors.
In each fiscal year thereafter, Executive shall participate in the Employer's
Equity and Performance Incentive Plan and Executive's Bonus thereunder shall
consist of an incentive bonus of up to 35% of his Base Salary, to be earned as
determined by the Board of Directors pursuant to the provisions of such plan.
During fiscal year 1998, one-half of Executive's Bonus will be guaranteed by the
Employer and the remaining Bonus will be incentive based. For purposes of the
preceding sentences, the "year" for which the Bonus is payable to Executive
shall be the Employer's fiscal year beginning in February 1997 and each
subsequent fiscal year of the Employer. Executive's Base Salary shall be subject
to review at the discretion of the Board of Directors from time to time taking
into account changes in Executive's responsibilities, increases in the cost of
living, performance by Executive, increases in salary to other executives of
Employer and other pertinent factors.
2.5 PAYMENT SCHEDULE. The Compensation specified in Section 2.4 hereof
shall be payable as current salary and bonus in accordance with Employer's
payroll and bonus procedures for other executives. Base Salary shall be paid in
installments not less frequently than monthly and at the same rate for any
fraction of a month unexpired at the end of the term. Bonuses shall be paid
annually in a lump sum not later than April 15 or, if such day is not a business
day on which the Employer's executive offices are open, the first business day
thereafter.
2.6 EXPENSES. Executive shall be allowed reasonable traveling expenses
and other reasonable expenses in carrying out his duties under this Agreement
and shall be furnished office space, assistance and accommodations suitable to
the character of his position with Employer and adequate for the performance of
his duties hereunder.
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2.7 TERMINATION OF EMPLOYMENT.
(a) TERMINATION FOLLOWING A CHANGE OF OWNERSHIP. If (i) before the
second anniversary of a Change of Ownership Employer notifies Executive that
Executive is being terminated, and such termination is without Cause; (ii)
before the second anniversary of a Change of Ownership Executive terminates his
employment for Good Reason; (iii) Executive terminates his employment with
Employer for any reason, or without reason, during the 30-day period immediately
following the first anniversary of a Change of Ownership; or (iv) Executive's
employment with Employer is terminated in connection with but prior to a Change
of Ownership and termination occurs following the commencement of any discussion
with any third party that ultimately results in a Change of Ownership, Executive
shall be entitled (except as otherwise provided in paragraphs (b), (c) and (d)
of this Section 2.7 and subject to Section 5.1) to receive a lump sum payment as
severance compensation equal to the greater of (I) 2.99 times his "base amount"
as such term is defined in Section 280G of the Code, or (II) 2 times his most
recent Base Salary and Bonus. Employer shall make such payment not later than 45
days after the date of termination. If any payment made to the Executive
pursuant to this Section 2.7(a) or otherwise pursuant to or by reason of any
other agreement, policy, plan, program or arrangement, including without
limitation any stock option, stock appreciation right or similar right, or the
lapse or termination of any restriction on or the vesting or exercisability of
any of the foregoing (a "Payment") is determined to be subject to the excise tax
imposed by Section 4999 of the Code (or any successor provision thereto) by
reason of being considered "contingent on a change in ownership or control" of
the Employer, within the meaning of Section 280G of the Code (or any successor
provision thereto) or to any similar tax imposed by state or local law, or to
any interest or penalties with respect to such tax (such tax or taxes, together
with any such interest and penalties, being hereafter collectively referred to
as the "Excise Tax"), then the Executive shall be entitled to receive an
additional payment or payments
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(collectively, a "280G Gross-Up Payment"). The 280G Gross-Up Payment shall be in
an amount such that, after payment by the Executive of all taxes (including any
interest or penalties imposed with respect to such taxes), including any excise
tax imposed upon the 280G Gross-Up Payment, the Executive retains a portion of
the 280G Gross-Up Payment equal to the Excise Tax imposed upon the Payment.
(b) DISABILITY. Executive shall not be in breach of this Agreement
if he shall fail to perform his duties hereof because of physical or mental
disability. If Executive fails to render services to Employer because of
Executive's physical or mental disability for a continuous period of 12 months,
the Board of Directors or its delegate may terminate Executive's employment
prior to the end of the then current term. If any dispute exists between the
parties as to Executive's physical or mental disability at any time, such
question shall be settled by the opinion of an impartial reputable physician
agreed upon for that purpose by the parties or their representatives. Failing
agreement upon an impartial physician for purposes of the preceding sentence,
the question of Executive's physical or mental disability shall be resolved
within 10 days of a written request therefor by either party to the other, by a
physician designated by the then Executive Vice President of the Ohio Academy of
Family Physicians. The written opinion of the physician as to the matter in
dispute shall be final and binding on the parties.
(c) OTHER TERMINATIONS BY EMPLOYER. (i) CAUSE. Employer may
terminate the employment of Executive for Cause at any time upon notice given
pursuant to Section 5.6. Upon such termination, this Agreement and all of
Employer's obligations under this Agreement shall terminate, except that
Employer shall remain obligated to pay to Executive any unpaid Base Salary
through the effective date of such termination and any vacation accrued but
unused as of Executive's last day worked.
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(ii) NOT FOR CAUSE. Employer may terminate the employment of
Executive at any time for any reason. However, if such termination of employment
does not occur pursuant to Section 2.2 or under the circumstances described in
paragraphs (a), (b) or (c)(i) of this Section 2.7, Employer shall remain
obligated to Executive for (I) payment of Executive's unpaid Base Salary (as
described in Section 2.4) through the then-remaining term of this Agreement
pursuant to Section 2.2, (II) any Bonus (as described in Section 2.4) paid on or
before Executive's last day worked and (III) payment for any vacation accrued
but unused as of before Executive's last day worked.
(d) DEATH. If Executive dies while rendering services under this
Agreement, there shall be payable to his estate an amount equal to his Base
Salary for the lesser of one year or the then remaining term of this Agreement.
Such amount shall be paid to Executive's estate in a single lump sum.
2.8 MITIGATION; OFFSET. Executive shall not be required to mitigate the
amount of any payment or benefit provided for in the Agreement by seeking other
employment or otherwise. However, any amount payable pursuant to this Agreement
following the termination of Executive's employment shall reduce any amount
payable by Employer to or with respect to Executive pursuant to any other
severance pay or other similar plan, program or arrangement of Employer,
including, without limitation, the Employer's Master Severance Plan for Key
Employees.
ARTICLE III
-----------
CERTAIN OBLIGATIONS OF EXECUTIVE
--------------------------------
3.1 NO PARTICIPATION IN OTHER BUSINESSES. Executive shall not, without
the consent of the Board of Directors, become actively associated with or
engaged in any business other than that of Employer or a division or Affiliate
of Employer, and he shall do nothing inconsistent with his duties to Employer.
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<PAGE> 10
3.2 TRADE SECRETS AND CONFIDENTIAL INFORMATION.
(a) UNAUTHORIZED DISCLOSURE, USE OR SOLICITATION. Executive will
keep in strict confidence, and will not, directly or indirectly, at any time
during or after his employment with Employer, disclose, furnish, disseminate,
make available or, except in the course of performing his duties of employment
under this Agreement, use any trade secrets or confidential business and
technical information of Employer or its customers, vendors or property owners
or managers, without limitation as to when or how Executive may have acquired
such information. Such confidential information will include, without
limitation, Employer's unique selling methods and trade techniques; management,
training, marketing and selling manuals; promotional materials; training courses
and other training and instructional materials; any personnel information;
material nonpublic financial information; any corporate organizational
information; lease terms; vendor, owner, manager and product information;
customer lists; other customer information; and other trade information.
Executive specifically acknowledges that all such confidential information
including, without limitation, customer lists, other customer information and
other trade information, whether reduced to writing, maintained on any form of
electronic media, or maintained in the mind or memory of Executive and whether
compiled by Employer and/or Executive, derives independent economic value from
not being readily known to or ascertainable by proper means by others who can
obtain economic value from its disclosure or use, that reasonable efforts have
been made by Employer to maintain the secrecy of such information, that such
information is the sole property of Employer and that any retention and use of
such information by Executive during his employment with Employer (except in the
course of performing his duties and obligations under this Agreement) or after
the termination of his employment will constitute a misappropriation of
Employer's trade secrets.
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(b) POST-TERMINATION. Executive agrees that, upon termination of
Executive's employment with Employer, for any reason, Executive will return to
Employer, in good condition, all property of Employer, including without
limitation, the originals and all copies of all management, training, marketing
and selling manuals; promotional materials; other training and instructional
materials; financial information; vendor, owner, manager and product
information; customer lists; other customer information; and all other selling,
service and trade information and equipment. If such items are not returned,
Employer will have the right to charge Executive for all reasonable damages,
costs, attorneys' fees and other expenses incurred in searching for, taking,
removing and/or recovering such property.
3.3 NONCOMPETITION. Executive and Employer recognize that Executive's
duties under this Agreement will entail the receipt of trade secrets and
confidential information, which include not only information concerning
Employer's current operations, procedures, suppliers and other contacts, but
also its short-range and long-range plans, and that such trade secrets and
confidential information may have been developed by Employer and its Affiliates
at substantial cost and constitute valuable and unique property of Employer.
Accordingly, Executive acknowledges that the foregoing makes it reasonably
necessary for the protection of Employer's business interests that Executive not
compete with Employer or any of its Affiliates during the term of this Agreement
and for a reasonable and limited period thereafter. Therefore, during the term
of this Agreement and for one year after termination of the Agreement, Executive
shall not have any investment in a Competing Business other than a de minimis
investment and shall not render personal services to any such Competing Business
in any manner, including, without limitation, as owner, partner, director,
trustee, officer, employee, consultant or advisor thereof; PROVIDED, HOWEVER,
that this Section 3.3 shall not apply if Executive terminates his employment for
Good Reason or Employer terminates
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Executive other than for Cause. For purposes of the preceding sentence, a de
minimis investment is ownership of less than 1/2 of 1% of the outstanding stock
or debt of any Competing Business.
Notwithstanding Section 2.7 above, if Executive shall breach the
covenants contained in this Section 3.3 or in Section 3.2, Employer shall have
no further obligations to Executive pursuant to this Agreement and may recover
from Executive all such damages as it may be entitled to at law or in equity. In
addition, Executive acknowledges that any such breach is likely to result in
immediate and irreparable harm to Employer for which money damages are likely to
be inadequate. Accordingly, Executive consents to injunctive and other
appropriate equitable relief that Employer may seek to protect Employer's rights
under this Agreement. Such relief may include, without limitation, an injunction
to prevent Executive from disclosing any trade secrets or confidential
information concerning Employer to any Entity, to prevent any Entity from
receiving from Executive or using any such trade secrets or confidential
information and/or to prevent any Entity from retaining or seeking to retain any
other employees of Employer.
3.4 CONFLICTS OF INTEREST. Executive shall not engage in any activity
that would violate any Conflict of Interest or Business Ethics Statement of
Employer that Executive may sign from time to time.
ARTICLE IV
----------
OTHER BENEFITS
--------------
4.1 EMPLOYEE BENEFITS.
(a) Executive and Executive's family, as applicable, shall be
eligible for participation in and shall receive all benefits under the savings
and retirement programs, welfare benefit plans, fringe benefit programs and
perquisites that Employer provides to senior executives of Employer in effect
from time to time.
(b) Subject to Section 5.1, upon termination under Section 2.7(a)
hereof:
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(i) The benefits described in Section 4.1(a) will continue
until the Executive obtains new employment providing substantially similar
benefits, but in any event no later than two years after the date of
termination. During the period of continued coverage pursuant to this
Subsection, the Executive will be required to pay the same cost of coverage,
co-pays, deductibles and other similar payments paid by active senior executives
of the Company having elected the same type of coverage. The Executive will
cease to be eligible for continued health and life insurance benefits provided
by the Employer if he (I) waives such coverage or (II) fails to pay any amount
required for such coverage.
(ii) The Executive will be reimbursed by the Employer for
reasonable expenses incurred for outplacement counseling that are pre-approved
by the Employer's Senior Vice President - Human Resources, (II) that do not
exceed 15% of the Executive's Base Salary and (III) that are incurred by the
Executive within 6 months following such termination.
4.2 RELOCATION. Executive shall relocate within six months from the
Effective Date to a residence within 35 miles of downtown Dayton, Ohio. Employer
shall, within 60 days of receipt of appropriate documentation, reimburse
Executive reasonable moving costs from Pittsburgh, Pennsylvania and reasonable
costs for temporary, furnished corporate housing in the Dayton area for up to
six months from Executive's first day of work pursuant to the Agreement. In
connection with the sale of Executive's residence in Pittsburgh, Pennsylvania,
Employer shall retain a relocation service to assist Executive in the
disposition of Executive's Pittsburgh residence. Executive shall be entitled to
all payments and reimbursements to which executives are entitled under
Employer's applicable relocation policy for transferred employees.
4.3 VACATION AND SICK LEAVE. Executive shall be entitled to vacation
and sick leave each year, in accordance with Employer's policies in effect from
time to time; PROVIDED, HOWEVER, that Executive shall be entitled to a minimum
of four weeks vacation per year.
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ARTICLE V
---------
MISCELLANEOUS
-------------
5.1 RELEASE. Payment of the amount described in Section 2.7(a) and the
benefits described in Section 4.1(b) to the Executive is conditioned upon the
Executive executing and delivering a release satisfactory to the Employer
releasing the Employer from any and all claims, demands, damages, actions and/or
causes of action whatsoever, which the Executive may have had on account of the
termination of his employment, including, but not limited to claims of
discrimination, including on the basis of sex, race, age, national origin,
religion, or handicapped status (with all applicable periods during which the
Executive may revoke the release or any provision thereof having expired), and
any and all claims, demands and causes of action for retirement (other than
under the retirement plans maintained by the Employer that are qualified under
Section 401(a) of the Code or under any "welfare benefit plan" of the Employer
(as the term "welfare benefit plan" is defined in Section 3(1) of the Employee
Retirement Income Security Act of 1974, as amended)), severance or other
termination pay. Such release will not, however, apply to the ongoing
obligations of the Employer arising under this Agreement, or rights of
indemnification the Executive may have under the Employer's policies or by
contract or by statute.
5.2 SUCCESSORS AND BINDING AGREEMENT.
(a) Employer will require any successor to all or substantially all
of the businesses or assets of Employer (whether direct or indirect, by
purchase, merger, consolidation, reorganization or otherwise), by agreement in
form and substance reasonably satisfactory to Executive, expressly to assume and
agree to perform this Agreement in the same manner and to the same extent
Employer would be required to perform if no such succession had taken place.
This Agreement will be binding upon and inure to the benefit of Employer and any
successor to Employer, including without limitation any persons acquiring
directly or indirectly all or substantially all of the businesses or
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assets of Employer whether by purchase, merger, consolidation, reorganization or
otherwise (and such successor will thereafter be deemed "Employer" for the
purposes of this Agreement).
(b) This Agreement will inure to the benefit of and be enforceable
by the Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees and legatees.
(c) This Agreement is personal in nature and neither of the parties
hereto will, without the consent of the other, assign, transfer or delegate this
Agreement or any rights or obligations hereof except as expressly provided in
Sections 5.2(a) and (b). Without limiting the generality or effect of the
foregoing, Executive's right to receive payments hereof will not be assignable,
transferable or delegable, whether by pledge, creation of a security interest,
or otherwise, other than by a transfer by Executive's will or by the laws of
descent and distribution and, if Executive attempts any assignment or transfer
contrary to this Section 5.2, Employer will have no liability to pay any amount
Executive attempts to assign, transfer or delegate.
5.3 GOVERNING LAW; ARBITRATION. This Agreement has been executed on
behalf of Employer by an officer of Employer located in the City of Moraine,
Ohio. This Agreement and all questions arising in connection with it shall be
governed by the internal substantive law of the State of Ohio, without giving
effect to principles of conflict of laws. Subject to the following sentence, all
disputes arising out of, or in connection with this Agreement, which are not
promptly settled by mutual agreement of the parties hereto, shall be finally
settled by arbitration in accordance with the rules of the American Arbitration
Association. Notwithstanding, Employer may, at its option, seek injunctive
relief as contemplated in Section 3.3 above either in lieu of or in addition to
the arbitration remedies provided for in this Section 5.3.
Arbitration shall be conducted by one or more arbitrators appointed in
accordance with such rules on the request of any party to the agreement giving
rise to the dispute. Arbitration shall take
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place in Dayton, Ohio. Such arbitration shall be governed by this Agreement and
shall be binding upon the parties hereto. The validity, construction,
performance or termination of any agreement by and between the parties submitted
to arbitration shall be determined on the basis of the contractual obligations
of the parties. The arbitrator shall determine his jurisdiction over persons and
subject matter if such jurisdiction is challenged by one of the parties. The
award of the arbitrator shall: (a) be rendered in writing stating the grounds on
which the arbitrators base same, and how the costs of arbitration are being
borne; the expenses of Executive to successfully petition or defend his
interests shall be borne by Employer; and (b) be carried out voluntarily and
without delay, and failing this, be made enforceable through either party by
entry of a judgment in a competent court of any jurisdiction.
5.4 SEVERABILITY. If any portion of this Agreement is held to be
invalid or unenforceable, such holding shall not affect any other portion of
this Agreement.
5.5 ENTIRE AGREEMENT. This Agreement comprises the entire agreement
between the parties hereto and, as of the date hereof, supersedes any prior
agreements between the parties. This Agreement may not be modified, renewed or
extended except by a written instrument referring to this Agreement and executed
by the parties hereto.
5.6 NOTICES. Any notice or consent required or permitted to be given
under this Agreement shall be in writing and shall be effective: (a) when given
by personal delivery, (b) one business day after being sent by overnight
delivery service or (c) five business days after being sent by certified U.S.
mail, return receipt requested, to the Secretary of Employer at its principal
place of business in the City of Moraine or to Executive at his last known
address as shown on the records of Employer.
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5.7 WITHHOLDING TAXES. Employer may withhold from any amounts payable
under this Agreement all federal, state, city or other taxes as shall be
required pursuant to any law or governmental regulation or ruling.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date and year first above written.
THE ELDER-BEERMAN STORES CORP.
By:______________________________________
Frederick J. Mershad
Chairman and Chief Executive Officer
_________________________________________
Scott J. Davido
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<PAGE> 1
Exhibit 10(w)
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT FOR SCOTT J. DAVIDO
THIS AGREEMENT, dated as of the 15th day of March, 1999,
between The Elder-Beerman Stores Corp., an Ohio corporation (the "Employer"),
and Scott J. Davido (the "Executive").
R E C I T A L S :
1. Employer and Executive have previously entered into an
Employment Agreement dated December 30, 1997 (the "Effective Date"), pursuant to
authority provided under the Third Amended Joint Plan of Reorganization of The
Elder-Beerman Stores Corp. and Its Subsidiaries, dated November 17, 1997, as
subsequently modified (the "Plan") and the order confirming the Plan, entered
December 16, 1997.
2. Employer and Executive want to enter into this Amended and
Restated Employment Agreement in order to reflect Executive's new position with
Employer, subject to the terms and conditions set forth below.
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants herein and for good and valuable consideration, the receipt of which
is hereby acknowledged, it is agreed as follows:
ARTICLE I
---------
DEFINITIONS
-----------
The following terms shall have the respective meanings set forth below,
unless the context clearly otherwise requires:
1.1 "AFFILIATE" means, with respect to a particular Entity, an Entity
that directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control
<PAGE> 2
with, such Entity, and an Entity shall be "unaffiliated" with another Entity if
such Entities are not Affiliates with respect to one another.
1.2 "CAUSE" means (i) an intentional act of fraud, embezzlement, theft
or any other material violation of law in connection with Executive's duties or
in the course of his employment with Employer involving material harm to
Employer; (ii) intentional wrongful damage to material assets of Employer; (iii)
intentional wrongful engagement in any activity that would constitute a material
breach of Sections 3.1 through 3.4 hereof; or (iv) physical or mental disability
that causes Executive to fail to perform his duties under this Agreement for a
continuous period of 12 months, as provided in Section 2.7(b). No act or
omission by Executive shall be deemed "intentional" if it was due to negligence
and shall be deemed "intentional" only if done, or omitted to be done, by
Executive not in good faith and without reasonable belief that his action or
omission was in or not opposed to the best interests of Employer and its
subsidiaries. Failure to meet performance standards or objectives of Employer
shall not constitute "Cause" for purposes hereof. To terminate the employment of
Executive for Cause, Employer must deliver to Executive a Notice of Termination
given within 90 days after the Board of Directors both (i) has knowledge of
conduct or an event allegedly constituting Cause and (ii) has reason to believe
that such conduct or event could be grounds for Cause. For purposes of this
Agreement a "Notice of Termination" shall mean a copy of a resolution duly
adopted by the affirmative vote of not less than a simple majority of the
membership of the Board of Directors, excluding Executive, at a meeting called
for the purpose of determining that Executive has engaged in conduct that
constitutes Cause (and at which Executive had a reasonable opportunity, together
with his counsel, to be heard before the Board of Directors prior to such vote).
1.3 "CHANGE OF OWNERSHIP" means any one of the following events: (i)
the sale to any purchaser unaffiliated with Employer of all or substantially all
of the assets of Employer; (ii) the
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sale, distribution, or accumulation of more than 50% of the outstanding voting
stock of Employer to/by any acquiror or group of affiliated acquirors that are
unaffiliated with Employer; (iii) individuals who, on the completion of
Employer's reorganization under chapter 11 of the Bankruptcy Code, 11 U.S.C.
sections 101-1330 (the "Bankruptcy Code"), constitute the Board of Directors
(the "Incumbent Directors") cease for any reason to constitute at least a
majority of the Board, provided that any person becoming a director subsequent
to such completion whose election or nomination for election was approved by a
vote of at least two-thirds of the Incumbent Directors then on the Board (either
by a specific vote or by approval of the proxy statement of Employer in which
such person is named as a nominee for director, without objection to such
nomination) shall be an Incumbent Director; PROVIDED, HOWEVER, that no
individual elected or nominated as a director of Employer initially as a result
of an actual or threatened election contest with respect to directors or any
other actual or threatened solicitation of proxies or consents by or on behalf
of any person other than the Board shall be deemed to be an Incumbent Director;
or (iv) the merger or consolidation of Employer with another Entity unaffiliated
with Employer if, immediately after such merger or consolidation, less than a
majority of the combined voting power of the then outstanding securities of such
Entity are held, directly or indirectly, in the aggregate by the holders
immediately prior to such transaction of the then outstanding securities of
Employer entitled to vote generally in the election of directors.
In no event shall "Change of Ownership" be construed to include any
change of control of Employer or any subsidiary of Employer that occurs solely
as a result of any exchange or distribution of equity securities of Employer or
any such subsidiary upon consummation of a plan of reorganization for Employer
or any such subsidiary in its chapter 11 case pending as of the date of this
Agreement.
1.4 "CODE" means the Internal Revenue Code of 1986, as amended.
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1.5 "COMPETING BUSINESS" means any of the following companies: (i)
Mercantile Stores Co., Inc.; Proffitt's, Inc.; or Carson Pirie Scott & Co.,
including each of their respective Affiliates; (ii) Lazarus, Inc.; (iii) Lazarus
PA, Inc.; or (iv) Rich's Department Stores, Inc.
1.6 "ENTITY" shall have the meaning provided in section 101(16) of the
Bankruptcy Code.
1.7 "GOOD REASON" means (i) the assignment to Executive of any duties
materially inconsistent with Executive's position (including status, offices,
titles and reporting requirements), authority, duties or responsibilities as
contemplated in Article II, or any other action by Employer that results in a
material diminution in such position, authority, duties or responsibilities,
excluding for this purpose an action not taken in bad faith and that is remedied
by Employer within 10 days after receipt of written notice thereof given by
Executive, provided that repeated instances of such action shall be evidence of
the bad faith of Employer; (ii) a reduction in the Executive's annual Base
Salary of at least 10%; (iii) the relocation of Employer's principal executive
offices to a location more than 75 miles from the current location of such
offices; (iv) any material failure by Employer to comply with any of the
provisions of this Agreement, other than a failure not occurring in bad faith
and which is remedied by Employer within 10 days after receipt of written notice
thereof given by Executive, provided that repeated failures shall be evidence of
the bad faith of Employer; or (v) removal of Executive as Executive Vice
President, Chief Financial Officer and Treasurer, other than for Cause.
ARTICLE II
----------
EMPLOYMENT
----------
2.1 EFFECTIVENESS. The Agreement shall be effective as of the date
first written above (the "Agreement Date").
2.2 TERM. Employer shall employ Executive, and Executive shall serve
Employer pursuant to the terms of this Agreement, starting on the Agreement
Date. The term of this
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Agreement shall extend initially until the third anniversary of the Effective
Date. The term of this Agreement shall be automatically extended on the third
anniversary of the Effective Date and each anniversary of the Effective Date
thereafter for a period of one year unless Employer or Executive shall have
given written notice of termination to the other not less than 120 days prior to
such anniversary of the Effective Date. Upon termination of this Agreement
pursuant to any such notice, Executive's employment with Employer shall
terminate, and Employer's only obligation to Executive will be payment of the
amounts described in Section 2.7(c)(ii).
2.3 DUTIES. Executive will serve as and perform the duties of Executive
Vice President -Chief Financial Officer and Treasurer of Employer in accordance
with the terms of this Agreement. The duties of Executive shall be those
commensurate with his office and shall include those responsibilities reasonably
assigned to Executive by the Chairman or President of the Employer, with
responsibility for reporting to the Chairman or President of the Employer.
2.4 COMPENSATION. In consideration of Executive's services hereunder,
Employer shall pay Executive cash compensation consisting of an annual "Base
Salary" and "Bonus." As of the Effective Date, Executive's Base Salary shall be
$225,000.00 per year, and his 1999 fiscal year Bonus shall consist of an
incentive bonus that includes a pro rata share, based on the percentage of days
served as Executive Vice President--Chief Financial Officer and Treasurer in
fiscal year 1999, of an incentive bonus of up to 40% of Executive's Base Salary,
to be earned as determined by the Board of Directors. In each fiscal year
thereafter, Executive shall participate in the Employer's Equity and Performance
Incentive Plan and Executive's Bonus thereunder shall consist of an incentive
bonus of up to 40% of his Base Salary, to be earned as determined by the Board
of Directors pursuant to the provisions of such plan. For purposes of the
preceding sentences, the "year" for which the Bonus is payable to Executive
shall be the Employer's fiscal year beginning in January 1999 and each
subsequent fiscal year of the Employer. Executive's Base Salary shall be
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subject to review at the discretion of the Board of Directors from time to time
taking into account changes in Executive's responsibilities, increases in the
cost of living, performance by Executive, increases in salary to other
executives of Employer and other pertinent factors.
2.5 PAYMENT SCHEDULE. The Compensation specified in Section 2.4 hereof
shall be payable as current salary and bonus in accordance with Employer's
payroll and bonus procedures for other executives. Base Salary shall be paid in
installments not less frequently than monthly and at the same rate for any
fraction of a month unexpired at the end of the term. Bonuses shall be paid
annually in a lump sum not later than April 15 or, if such day is not a business
day on which the Employer's executive offices are open, the first business day
thereafter.
2.6 EXPENSES. Executive shall be allowed reasonable traveling expenses
and other reasonable expenses in carrying out his duties under this Agreement
and shall be furnished office space, assistance and accommodations suitable to
the character of his position with Employer and adequate for the performance of
his duties hereunder.
2.7 TERMINATION OF EMPLOYMENT.
(a) TERMINATION FOLLOWING A CHANGE OF OWNERSHIP. If (i) before the
second anniversary of a Change of Ownership Employer notifies Executive that
Executive is being terminated, and such termination is without Cause; (ii)
before the second anniversary of a Change of Ownership Executive terminates his
employment for Good Reason; (iii) Executive terminates his employment with
Employer for any reason, or without reason, during the 30-day period immediately
following the first anniversary of a Change of Ownership; or (iv) Executive's
employment with Employer is terminated in connection with but prior to a Change
of Ownership and termination occurs following the commencement of any discussion
with any third party that ultimately results in a Change of Ownership, Executive
shall be entitled (except as otherwise provided in paragraphs (b), (c) and (d)
of this Section 2.7 and subject to Section 5.1) to receive a lump sum payment as
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severance compensation equal to the greater of (I) 2.99 times his "base amount"
as such term is defined in Section 280G of the Code, or (II) 2 times his most
recent Base Salary and Bonus. Employer shall make such payment not later than 45
days after the date of termination. If any payment made to the Executive
pursuant to this Section 2.7(a) or otherwise pursuant to or by reason of any
other agreement, policy, plan, program or arrangement, including without
limitation any stock option, stock appreciation right or similar right, or the
lapse or termination of any restriction on or the vesting or exercisability of
any of the foregoing (a "Payment") is determined to be subject to the excise tax
imposed by Section 4999 of the Code (or any successor provision thereto) by
reason of being considered "contingent on a change in ownership or control" of
the Employer, within the meaning of Section 280G of the Code (or any successor
provision thereto) or to any similar tax imposed by state or local law, or to
any interest or penalties with respect to such tax (such tax or taxes, together
with any such interest and penalties, being hereafter collectively referred to
as the "Excise Tax"), then the Executive shall be entitled to receive an
additional payment or payments (collectively, a "280G Gross-Up Payment"). The
280G Gross-Up Payment shall be in an amount such that, after payment by the
Executive of all taxes (including any interest or penalties imposed with respect
to such taxes), including any excise tax imposed upon the 280G Gross-Up Payment,
the Executive retains a portion of the 280G Gross-Up Payment equal to the Excise
Tax imposed upon the Payment.
(b) DISABILITY. Executive shall not be in breach of this Agreement
if he shall fail to perform his duties hereof because of physical or mental
disability. If Executive fails to render services to Employer because of
Executive's physical or mental disability for a continuous period of 12 months,
the Board of Directors or its delegate may terminate Executive's employment
prior to the end of the then current term. If any dispute exists between the
parties as to Executive's physical or mental disability at any time, such
question shall be settled by the opinion of an impartial
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reputable physician agreed upon for that purpose by the parties or their
representatives. Failing agreement upon an impartial physician for purposes of
the preceding sentence, the question of Executive's physical or mental
disability shall be resolved within 10 days of a written request therefor by
either party to the other, by a physician designated by the then Executive Vice
President of the Ohio Academy of Family Physicians. The written opinion of the
physician as to the matter in dispute shall be final and binding on the parties.
(c) OTHER TERMINATIONS BY EMPLOYER. (i) CAUSE. Employer may
terminate the employment of Executive for Cause at any time upon notice given
pursuant to Section 5.6. Upon such termination, this Agreement and all of
Employer's obligations under this Agreement shall terminate, except that
Employer shall remain obligated to pay to Executive any unpaid Base Salary
through the effective date of such termination and any vacation accrued but
unused as of Executive's last day worked.
(ii) NOT FOR CAUSE. Employer may terminate the employment of
Executive at any time for any reason. However, if such termination of employment
does not occur pursuant to Section 2.2 or under the circumstances described in
paragraphs (a), (b) or (c)(i) of this Section 2.7, Employer shall remain
obligated to Executive for (I) payment of Executive's unpaid Base Salary (as
described in Section 2.4) through the then-remaining term of this Agreement
pursuant to Section 2.2, (II) any Bonus (as described in Section 2.4) paid on or
before Executive's last day worked and (III) payment for any vacation accrued
but unused as of Executive's last day worked.
(d) DEATH. If Executive dies while rendering services under this
Agreement, there shall be payable to his estate an amount equal to his Base
Salary for the lesser of one year or the then remaining term of this Agreement.
Such amount shall be paid to Executive's estate in a single lump sum.
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2.8 MITIGATION; OFFSET. Executive shall not be required to mitigate the
amount of any payment or benefit provided for in the Agreement by seeking other
employment or otherwise. However, any amount payable pursuant to this Agreement
following the termination of Executive's employment shall reduce any amount
payable by Employer to or with respect to Executive pursuant to any other
severance pay or other similar plan, program or arrangement of Employer,
including, without limitation, the Employer's Master Severance Plan for Key
Employees.
ARTICLE III
-----------
CERTAIN OBLIGATIONS OF EXECUTIVE
--------------------------------
3.1 NO PARTICIPATION IN OTHER BUSINESSES. Executive shall not, without
the consent of the Board of Directors, become actively associated with or
engaged in any business other than that of Employer or a division or Affiliate
of Employer, and he shall do nothing inconsistent with his duties to Employer.
3.2 TRADE SECRETS AND CONFIDENTIAL INFORMATION.
(a) UNAUTHORIZED DISCLOSURE, USE OR SOLICITATION. Executive will
keep in strict confidence, and will not, directly or indirectly, at any time
during or after his employment with Employer, disclose, furnish, disseminate,
make available or, except in the course of performing his duties of employment
under this Agreement, use any trade secrets or confidential business and
technical information of Employer or its customers, vendors or property owners
or managers, without limitation as to when or how Executive may have acquired
such information. Such confidential information will include, without
limitation, Employer's unique selling methods and trade techniques; management,
training, marketing and selling manuals; promotional materials; training courses
and other training and instructional materials; any personnel information;
material nonpublic financial information; any corporate organizational
information; lease terms; vendor, owner, manager and product information;
customer lists; other customer information; and other trade
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information. Executive specifically acknowledges that all such confidential
information including, without limitation, customer lists, other customer
information and other trade information, whether reduced to writing, maintained
on any form of electronic media, or maintained in the mind or memory of
Executive and whether compiled by Employer and/or Executive, derives independent
economic value from not being readily known to or ascertainable by proper means
by others who can obtain economic value from its disclosure or use, that
reasonable efforts have been made by Employer to maintain the secrecy of such
information, that such information is the sole property of Employer and that any
retention and use of such information by Executive during his employment with
Employer (except in the course of performing his duties and obligations under
this Agreement) or after the termination of his employment will constitute a
misappropriation of Employer's trade secrets.
(b) POST-TERMINATION. Executive agrees that, upon termination of
Executive's employment with Employer, for any reason, Executive will return to
Employer, in good condition, all property of Employer, including without
limitation, the originals and all copies of all management, training, marketing
and selling manuals; promotional materials; other training and instructional
materials; financial information; vendor, owner, manager and product
information; customer lists; other customer information; and all other selling,
service and trade information and equipment. If such items are not returned,
Employer will have the right to charge Executive for all reasonable damages,
costs, attorneys' fees and other expenses incurred in searching for, taking,
removing and/or recovering such property.
3.3 NONCOMPETITION. Executive and Employer recognize that Executive's
duties under this Agreement will entail the receipt of trade secrets and
confidential information, which include not only information concerning
Employer's current operations, procedures, suppliers and other contacts, but
also its short-range and long-range plans, and that such trade secrets and
confidential
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information may have been developed by Employer and its Affiliates at
substantial cost and constitute valuable and unique property of Employer.
Accordingly, Executive acknowledges that the foregoing makes it reasonably
necessary for the protection of Employer's business interests that Executive not
compete with Employer or any of its Affiliates during the term of this Agreement
and for a reasonable and limited period thereafter. Therefore, during the term
of this Agreement and for one year after termination of the Agreement, Executive
shall not have any investment in a Competing Business other than a de minimus
investment and shall not render personal services to any such Competing Business
in any manner, including, without limitation, as owner, partner, director,
trustee, officer, employee, consultant or advisor thereof; PROVIDED, HOWEVER,
that this Section 3.3 shall not apply if Executive terminates his employment for
Good Reason or Employer terminates Executive other than for Cause. For purposes
of the preceding sentence, a de minimus investment is ownership of less than 1/2
of 1% of the outstanding stock or debt of any Competing Business.
Notwithstanding Section 2.7 above, if Executive shall breach the
covenants contained in this Section 3.3 or in Section 3.2, Employer shall have
no further obligations to Executive pursuant to this Agreement and may recover
from Executive all such damages as it may be entitled to at law or in equity. In
addition, Executive acknowledges that any such breach is likely to result in
immediate and irreparable harm to Employer for which money damages are likely to
be inadequate. Accordingly, Executive consents to injunctive and other
appropriate equitable relief that Employer may seek to protect Employer's rights
under this Agreement. Such relief may include, without limitation, an injunction
to prevent Executive from disclosing any trade secrets or confidential
information concerning Employer to any Entity, to prevent any Entity from
receiving from Executive or using any such trade secrets or confidential
information and/or to prevent any Entity from retaining or seeking to retain any
other employees of Employer.
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3.4 CONFLICTS OF INTEREST. Executive shall not engage in any activity
that would violate any Conflict of Interest or Business Ethics Statement of
Employer that Executive may sign from time to time.
ARTICLE IV
----------
OTHER BENEFITS
--------------
4.1 EMPLOYEE BENEFITS.
(a) Executive and Executive's family, as applicable, shall be
eligible for participation in and shall receive all benefits under the savings
and retirement programs, welfare benefit plans, fringe benefit programs and
perquisites that Employer provides to senior executives of Employer in effect
from time to time.
(b) Subject to Section 5.1, upon termination under Section 2.7(a)
hereof:
(i) The benefits described in Section 4.1(a) will continue
until the Executive obtains new employment providing substantially similar
benefits, but in any event no later than two years after the date of
termination. During the period of continued coverage pursuant to this
Subsection, the Executive will be required to pay the same cost of coverage,
co-pays, deductibles and other similar payments paid by active senior executives
of the Company having elected the same type of coverage. The Executive will
cease to be eligible for continued health and life insurance benefits provided
by the Employer if he (I) waives such coverage or (II) fails to pay any amount
required for such coverage.
(ii) The Executive will be reimbursed by the Employer for
reasonable expenses incurred for outplacement counseling (I) that are
pre-approved by the Employer's Senior Vice President - Human Resources, (II)
that do not exceed 15% of the Executive's Base Salary and (III) that are
incurred by the Executive within 6 months following such termination.
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4.2 RELOCATION. Executive shall relocate within six months from the
Agreement Date to a residence within 35 miles of downtown Dayton, Ohio. Employer
shall, within 60 days of receipt of appropriate documentation, reimburse
Executive reasonable moving costs from Pittsburgh, Pennsylvania and reasonable
costs for temporary, furnished corporate housing in the Dayton area for up to
six months from Executive's first day of work pursuant to this Agreement. In
connection with the sale of Executive's residence in Pittsburgh, Pennsylvania,
Employer shall retain a relocation service to assist Executive in the
disposition of Executive's Pittsburgh residence. Executive shall be entitled to
all payments and reimbursements to which executives are entitled under
Employer's applicable relocation policy for transferred employees.
4.3 VACATION AND SICK LEAVE. Executive shall be entitled to vacation
and sick leave each year, in accordance with Employer's policies in effect from
time to time; PROVIDED, HOWEVER, that Executive shall be entitled to a minimum
of four weeks vacation per year.
ARTICLE V
---------
MISCELLANEOUS
-------------
5.1 RELEASE. Payment of the amount described in Section 2.7(a) and the
benefits described in Section 4.1(b) to the Executive is conditioned upon the
Executive executing and delivering a release satisfactory to the Employer
releasing the Employer from any and all claims, demands, damages, actions and/or
causes of action whatsoever, which the Executive may have had on account of the
termination of his employment, including, but not limited to claims of
discrimination, including on the basis of sex, race, age, national origin,
religion, or handicapped status (with all applicable periods during which the
Executive may revoke the release or any provision thereof having expired), and
any and all claims, demands and causes of action for retirement (other than
under the retirement plans maintained by the Employer that are qualified under
Section 401(a) of the Code or under any "welfare benefit plan" of the Employer
(as the term
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"welfare benefit plan" is defined in Section 3(1) of the Employee Retirement
Income Security Act of 1974, as amended)), severance or other termination pay.
Such release will not, however, apply to the ongoing obligations of the Employer
arising under this Agreement, or rights of indemnification the Executive may
have under the Employer's policies or by contract or by statute.
5.2 SUCCESSORS AND BINDING AGREEMENT.
(a) Employer will require any successor to all or
substantially all of the businesses or assets of Employer (whether direct or
indirect, by purchase, merger, consolidation, reorganization or otherwise), by
agreement in form and substance reasonably satisfactory to Executive, expressly
to assume and agree to perform this Agreement in the same manner and to the same
extent Employer would be required to perform if no such succession had taken
place. This Agreement will be binding upon and inure to the benefit of Employer
and any successor to Employer, including without limitation any persons
acquiring directly or indirectly all or substantially all of the businesses or
assets of Employer whether by purchase, merger, consolidation, reorganization or
otherwise (and such successor will thereafter be deemed "Employer" for the
purposes of this Agreement).
(b) This Agreement will inure to the benefit of and be
enforceable by the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees and legatees.
(c) This Agreement is personal in nature and neither of the
parties hereto will, without the consent of the other, assign, transfer or
delegate this Agreement or any rights or obligations hereof except as expressly
provided in Sections 5.2(a) and (b). Without limiting the generality or effect
of the foregoing, Executive's right to receive payments hereof will not be
assignable, transferable or delegable, whether by pledge, creation of a security
interest, or otherwise, other than by a transfer by Executive's will or by the
laws of descent and distribution and, if
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Executive attempts any assignment or transfer contrary to this Section 5.2,
Employer will have no liability to pay any amount Executive attempts to assign,
transfer or delegate.
5.3 GOVERNING LAW; ARBITRATION. This Agreement has been executed on
behalf of Employer by an officer of Employer located in the City of Dayton,
Ohio. This Agreement and all questions arising in connection with it shall be
governed by the internal substantive law of the State of Ohio, without giving
effect to principles of conflict of laws. Subject to the following sentence, all
disputes arising out of, or in connection with this Agreement, which are not
promptly settled by mutual agreement of the parties hereto, shall be finally
settled by arbitration in accordance with the rules of the American Arbitration
Association. Notwithstanding, Employer may, at its option, seek injunctive
relief as contemplated in Section 3.3 above either in lieu of or in addition to
the arbitration remedies provided for in this Section 5.3.
Arbitration shall be conducted by one or more arbitrators appointed in
accordance with such rules on the request of any party to the agreement giving
rise to the dispute. Arbitration shall take place in Dayton, Ohio. Such
arbitration shall be governed by this Agreement and shall be binding upon the
parties hereto. The validity, construction, performance or termination of any
agreement by and between the parties submitted to arbitration shall be
determined on the basis of the contractual obligations of the parties. The
arbitrator shall determine his jurisdiction over persons and subject matter if
such jurisdiction is challenged by one of the parties. The award of the
arbitrator shall: (a) be rendered in writing stating the grounds on which the
arbitrators base same, and how the costs of arbitration are being borne; the
expenses of Executive to successfully petition or defend his interests shall be
borne by Employer; and (b) be carried out voluntarily and without delay, and
failing this, be made enforceable through either party by entry of a judgment in
a competent court of any jurisdiction.
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5.4 SEVERABILITY. If any portion of this Agreement is held to be
invalid or unenforceable, such holding shall not affect any other portion of
this Agreement.
5.5 ENTIRE AGREEMENT. This Agreement comprises the entire agreement
between the parties hereto and, as of the date hereof, supersedes any prior
agreements between the parties. This Agreement may not be modified, renewed or
extended except by a written instrument referring to this Agreement and executed
by the parties hereto.
5.6 NOTICES. Any notice or consent required or permitted to be given
under this Agreement shall be in writing and shall be effective: (a) when given
by personal delivery, (b) one business day after being sent by overnight
delivery service or (c) five business days after being sent by certified U.S.
mail, return receipt requested, to the Secretary of Employer at its principal
place of business in the City of Moraine or to Executive at his last known
address as shown on the records of Employer.
5.7 WITHHOLDING TAXES. Employer may withhold from any amounts payable
under this Agreement all federal, state, city or other taxes as shall be
required pursuant to any law or governmental regulation or ruling.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date and year first above written.
THE ELDER-BEERMAN STORES CORP.
By:_______________________________________
Frederick J. Mershad
Chairman and Chief Executive Officer
__________________________________________
Scott J. Davido
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Exhibit 10(x)
EMPLOYMENT AGREEMENT FOR STEVEN D. LIPTON
THIS AGREEMENT, dated as of the 30th day of December, 1997,
between The Elder-Beerman Stores Corp., an Ohio corporation (the "Employer"),
and Steven D. Lipton (the "Executive").
R E C I T A L S :
1. On October 17, 1995, Employer and its subsidiaries
(collectively, the "Debtors") filed voluntarily petitions for relief under
chapter 11 of the Bankruptcy Code, 11 U.S.C. section section 101-1330 (the
"Bankruptcy Code"). The Debtors continue to manage and operate their businesses
as debtors in possession pursuant to sections 1107 and 1108 of the Bankruptcy
Code. Employer's chapter 11 case is pending in the United States Bankruptcy
Court for the Southern District of Ohio, Western Division (the "Bankruptcy
Court"). On December 16, 1997, the Bankruptcy Court entered an order (the
"Confirmation Order") confirming the Third Amended Joint Plan of Reorganization
of The Elder-Beerman Stores Corp. and Its Subsidiaries, dated November 17, 1997,
as subsequently modified (the "Plan").
2. Employer has determined that it is critical to the success of
its efforts to reorganize under chapter 11 that it select the most qualified
person to serve as Senior Vice President, Controller for Employer upon the
Effective Date (as defined in the Plan).
3. Employer wants to enter into this Agreement with Executive based
on its belief that Executive is uniquely qualified to assume the role of Senior
Vice President, Controller upon the Effective Date, subject to the terms and
conditions set forth below.
4. Executive wants to enter into this Agreement with Employer,
subject to the terms and conditions set forth below. Employer is entering into
this Employment Agreement pursuant to authority provided under the Plan and the
Confirmation Order.
<PAGE> 2
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants herein and for good and valuable consideration, the receipt of which
is hereby acknowledged, it is agreed as follows:
ARTICLE I
---------
DEFINITIONS
-----------
The following terms shall have the respective meanings set forth
below, unless the context clearly otherwise requires:
1.1 "AFFILIATE" means, with respect to a particular Entity, an Entity
that directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, such Entity, and an Entity shall
be "unaffiliated" with another Entity if such Entities are not Affiliates with
respect to one another.
1.2 "CAUSE" means (i) an intentional act of fraud, embezzlement, theft
or any other material violation of law in connection with Executive's duties or
in the course of his employment with Employer involving material harm to
Employer; (ii) intentional wrongful damage to material assets of Employer; (iii)
intentional wrongful engagement in any activity that would constitute a material
breach of Sections 3.1 through 3.4 hereof; or (iv) physical or mental disability
that causes Executive to fail to perform his duties under this Agreement for a
continuous period of 12 months, as provided in Section 2.7(b). No act or
omission by Executive shall be deemed "intentional" if it was due to negligence
and shall be deemed "intentional" only if done, or omitted to be done, by
Executive not in good faith and without reasonable belief that his action or
omission was in or not opposed to the best interests of Employer and its
subsidiaries. Failure to meet performance standards or objectives of Employer
shall not constitute "Cause" for purposes hereof. To terminate the employment of
Executive for Cause, Employer must deliver to Executive a Notice of Termination
given within 90 days after the Board of Directors both (i) has knowledge of
conduct or an event
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allegedly constituting Cause and (ii) has reason to believe that such conduct or
event could be grounds for Cause. For purposes of this Agreement a "Notice of
Termination" shall mean a copy of a resolution duly adopted by the affirmative
vote of not less than a simple majority of the membership of the Board of
Directors, excluding Executive, at a meeting called for the purpose of
determining that Executive has engaged in conduct that constitutes Cause (and at
which Executive had a reasonable opportunity, together with his counsel, to be
heard before the Board of Directors prior to such vote).
1.3 "CHANGE OF OWNERSHIP" means any one of the following events: (i)
the sale to any purchaser unaffiliated with Employer of all or substantially all
of the assets of Employer; (ii) the sale, distribution, or accumulation of more
than 50% of the outstanding voting stock of Employer to/by any acquiror or group
of affiliated acquirors that are unaffiliated with Employer; (iii) individuals
who, on the completion of Employer's chapter 11 reorganization under the
Bankruptcy Code, constitute the Board of Directors (the "Incumbent Directors")
cease for any reason to constitute at least a majority of the Board, provided
that any person becoming a director subsequent to such completion whose election
or nomination for election was approved by a vote of at least two-thirds of the
Incumbent Directors then on the Board (either by a specific vote or by approval
of the proxy statement of Employer in which such person is named as a nominee
for director, without objection to such nomination) shall be an Incumbent
Director; PROVIDED, HOWEVER, that no individual elected or nominated as a
director of Employer initially as a result of an actual or threatened election
contest with respect to directors or any other actual or threatened solicitation
of proxies or consents by or on behalf of any person other than the Board shall
be deemed to be an Incumbent Director; or (iv) the merger or consolidation of
Employer with another Entity unaffiliated with Employer if, immediately after
such merger or consolidation, less than a majority of the combined voting power
of the then outstanding securities of such Entity are held, directly or
indirectly, in the aggregate by
3
<PAGE> 4
the holders immediately prior to such transaction of the then outstanding
securities of Employer entitled to vote generally in the election of directors.
In no event shall "Change of Ownership" be construed to include any
change of control of Employer or any subsidiary of Employer that occurs solely
as a result of any exchange or distribution of equity securities of Employer or
any such subsidiary upon consummation of a plan of reorganization for Employer
or any such subsidiary in its chapter 11 case pending as of the date of this
Agreement.
1.4 "CODE" means the Internal Revenue Code of 1986, as amended.
1.5 "COMPETING BUSINESS" means any of the following companies: (i)
Mercantile Stores Co., Inc.; Proffitt's, Inc.; or Carson Pirie Scott & Co.,
including each of their respective Affiliates; (ii) Lazarus, Inc.; (iii) Lazarus
PA, Inc.; or (iv) Rich's Department Stores, Inc.
1.6 "ENTITY" shall have the meaning provided in section 101(16) of the
Bankruptcy Code.
1.7 "GOOD REASON" means (i) the assignment to Executive of any duties
materially inconsistent with Executive's position (including status, offices,
titles and reporting requirements), authority, duties or responsibilities as
contemplated in Article II, or any other action by Employer that results in a
material diminution in such position, authority, duties or responsibilities,
excluding for this purpose an action not taken in bad faith and that is remedied
by Employer within 10 days after receipt of written notice thereof given by
Executive, provided that repeated instances of such action shall be evidence of
the bad faith of Employer; (ii) a reduction in the Executive's annual Base
Salary of at least 10%; (iii) the relocation of Employer's principal executive
offices to a location more than 75 miles from the current location of such
offices; (iv) any material failure by Employer to comply with any of the
provisions of this Agreement, other than a failure not occurring in bad faith
and which is remedied by Employer within 10 days after receipt of written notice
thereof given
4
<PAGE> 5
by Executive, provided that repeated failures shall be evidence of the bad faith
of Employer; or (v) removal of Executive as Senior Vice President, Controller,
other than for Cause.
ARTICLE II
----------
EMPLOYMENT
----------
2.1 EFFECTIVENESS. Notwithstanding any other provision of the
Agreement, the Agreement shall not be effective until the Effective Date.
2.2 TERM. Employer shall employ Executive, and Executive shall serve
Employer pursuant to the terms of this Agreement, starting on the Effective
Date. The term of this Agreement shall extend initially until the second
anniversary of the Effective Date. The term of this Agreement shall be
automatically extended on the second anniversary of the Effective Date and each
anniversary of the Effective Date thereafter for a period of one year unless
Employer or Executive shall have given written notice of termination to the
other not less than 120 days prior to such anniversary of the Effective Date.
Upon termination of this Agreement pursuant to any such notice, Executive's
employment with Employer shall terminate, and Employer's only obligation to
Executive will be payment of the amounts described in Section 2.7(c)(ii).
2.3 DUTIES. Executive will serve as and perform the duties of Senior
Vice President, Controller of Employer in accordance with the terms of this
Agreement. The duties of Executive shall be those commensurate with his office
and shall include those responsibilities reasonably assigned to Executive by the
Chairman or President of the Employer, with responsibility for reporting to the
Chairman or President of the Employer.
2.4 COMPENSATION. In consideration of Executive's services hereunder,
Employer shall pay Executive cash compensation consisting of an annual "Base
Salary" and "Bonus." As of the Effective Date, Executive's Base Salary shall be
$155,000.00 per year, and his 1997 fiscal year Bonus shall consist of an
incentive bonus of up to 30% of Executive's Base Salary, to be earned as
5
<PAGE> 6
determined by the Board of Directors. In each fiscal year thereafter, Executive
shall participate in the Employer's Equity and Performance Incentive Plan and
Executive's Bonus thereunder shall consist of an incentive bonus of up to 35% of
his Base Salary, to be earned as determined by the Board of Directors pursuant
to the provisions of such plan. For purposes of the preceding sentences, the
"year" for which the Bonus is payable to Executive shall be the Employer's
fiscal year beginning in February 1997 and each subsequent fiscal year of the
Employer. Executive's Base Salary shall be subject to review at the discretion
of the Board of Directors from time to time taking into account changes in
Executive's responsibilities, increases in the cost of living, performance by
Executive, increases in salary to other executives of Employer and other
pertinent factors.
2.5 PAYMENT SCHEDULE. The Compensation specified in Section 2.4 hereof
shall be payable as current salary and bonus in accordance with Employer's
payroll and bonus procedures for other executives. Base Salary shall be paid in
installments not less frequently than monthly and at the same rate for any
fraction of a month unexpired at the end of the term. Bonuses shall be paid
annually in a lump sum not later than April 15 or, if such day is not a business
day on which the Employer's executive offices are open, the first business day
thereafter.
2.6 EXPENSES. Executive shall be allowed reasonable traveling expenses
and other reasonable expenses in carrying out his duties under this Agreement
and shall be furnished office space, assistance and accommodations suitable to
the character of his position with Employer and adequate for the performance of
his duties hereunder.
2.7 TERMINATION OF EMPLOYMENT.
(a) TERMINATION FOLLOWING A CHANGE OF OWNERSHIP. If (i) before the
second anniversary of a Change of Ownership Employer notifies Executive that
Executive is being terminated, and such termination is without Cause; (ii)
before the second anniversary of a Change of Ownership Executive terminates his
employment for Good Reason; (iii) Executive terminates his
6
<PAGE> 7
employment with Employer for any reason, or without reason, during the 30-day
period immediately following the first anniversary of a Change of Ownership; or
(iv) Executive's employment with Employer is terminated in connection with but
prior to a Change of Ownership and termination occurs following the commencement
of any discussion with any third party that ultimately results in a Change of
Ownership, Executive shall be entitled (except as otherwise provided in
paragraphs (b), (c) and (d) of this Section 2.7 and subject to Section 5.1) to
receive a lump sum payment as severance compensation equal to the greater of (I)
2.99 times his "base amount" as such term is defined in Section 280G of the
Code, or (II) 2 times his most recent Base Salary and Bonus. Employer shall make
such payment not later than 45 days after the date of termination. If any
payment made to the Executive pursuant to this Section 2.7(a) or otherwise
pursuant to or by reason of any other agreement, policy, plan, program or
arrangement, including without limitation any stock option, stock appreciation
right or similar right, or the lapse or termination of any restriction on or the
vesting or exercisability of any of the foregoing (a "Payment") is determined to
be subject to the excise tax imposed by Section 4999 of the Code (or any
successor provision thereto) by reason of being considered "contingent on a
change in ownership or control" of the Employer, within the meaning of Section
280G of the Code (or any successor provision thereto) or to any similar tax
imposed by state or local law, or to any interest or penalties with respect to
such tax (such tax or taxes, together with any such interest and penalties,
being hereafter collectively referred to as the "Excise Tax"), then the
Executive shall be entitled to receive an additional payment or payments
(collectively, a "280G Gross-Up Payment"). The 280G Gross-Up Payment shall be in
an amount such that, after payment by the Executive of all taxes (including any
interest or penalties imposed with respect to such taxes), including any excise
tax imposed upon the 280G Gross-Up Payment, the Executive retains a portion of
the 280G Gross-Up Payment equal to the Excise Tax imposed upon the Payment.
7
<PAGE> 8
(b) DISABILITY. Executive shall not be in breach of this Agreement
if he shall fail to perform his duties hereof because of physical or mental
disability. If Executive fails to render services to Employer because of
Executive's physical or mental disability for a continuous period of 12 months,
the Board of Directors or its delegate may terminate Executive's employment
prior to the end of the then current term. If any dispute exists between the
parties as to Executive's physical or mental disability at any time, such
question shall be settled by the opinion of an impartial reputable physician
agreed upon for that purpose by the parties or their representatives. Failing
agreement upon an impartial physician for purposes of the preceding sentence,
the question of Executive's physical or mental disability shall be resolved
within 10 days of a written request therefor by either party to the other, by a
physician designated by the then Executive Vice President of the Ohio Academy of
Family Physicians. The written opinion of the physician as to the matter in
dispute shall be final and binding on the parties.
(c) OTHER TERMINATIONS BY EMPLOYER. (i) CAUSE. Employer may
terminate the employment of Executive for Cause at any time upon notice given
pursuant to Section 5.6. Upon such termination, this Agreement and all of
Employer's obligations under this Agreement shall terminate, except that
Employer shall remain obligated to pay to Executive any unpaid Base Salary
through the effective date of such termination and any vacation accrued but
unused as of Executive's last day worked.
(ii) NOT FOR CAUSE. Employer may terminate the employment of
Executive at any time for any reason. However, if such termination of employment
does not occur pursuant to Section 2.2 or under the circumstances described in
paragraphs (a), (b) or (c)(i) of this Section 2.7, Employer shall remain
obligated to Executive for (I) payment of Executive's unpaid Base Salary (as
described in Section 2.4) through the then-remaining term of this Agreement
pursuant to Section 2.2,
8
<PAGE> 9
(II) any Bonus (as described in Section 2.4) paid on or before Executive's last
day worked and (III) payment for any vacation accrued but unused as of before
Executive's last day worked.
(d) DEATH. If Executive dies while rendering services under this
Agreement, there shall be payable to his estate an amount equal to his Base
Salary for the lesser of one year or the then remaining term of this Agreement.
Such amount shall be paid to Executive's estate in a single lump sum.
2.8 MITIGATION; OFFSET. Executive shall not be required to mitigate the
amount of any payment or benefit provided for in the Agreement by seeking other
employment or otherwise. However, any amount payable pursuant to this Agreement
following the termination of Executive's employment shall reduce any amount
payable by Employer to or with respect to Executive pursuant to any other
severance pay or other similar plan, program or arrangement of Employer,
including, without limitation, the Employer's Master Severance Plan for Key
Employees.
ARTICLE III
-----------
CERTAIN OBLIGATIONS OF EXECUTIVE
--------------------------------
3.1 NO PARTICIPATION IN OTHER BUSINESSES. Executive shall not, without
the consent of the Board of Directors, become actively associated with or
engaged in any business other than that of Employer or a division or Affiliate
of Employer, and he shall do nothing inconsistent with his duties to Employer.
3.2 TRADE SECRETS AND CONFIDENTIAL INFORMATION.
(a) UNAUTHORIZED DISCLOSURE, USE OR SOLICITATION. Executive will
keep in strict confidence, and will not, directly or indirectly, at any time
during or after his employment with Employer, disclose, furnish, disseminate,
make available or, except in the course of performing his duties of employment
under this Agreement, use any trade secrets or confidential business and
technical information of Employer or its customers, vendors or property owners
or managers,
9
<PAGE> 10
without limitation as to when or how Executive may have acquired such
information. Such confidential information will include, without limitation,
Employer's unique selling methods and trade techniques; management, training,
marketing and selling manuals; promotional materials; training courses and other
training and instructional materials; any personnel information; material
nonpublic financial information; any corporate organizational information; lease
terms; vendor, owner, manager and product information; customer lists; other
customer information; and other trade information. Executive specifically
acknowledges that all such confidential information including, without
limitation, customer lists, other customer information and other trade
information, whether reduced to writing, maintained on any form of electronic
media, or maintained in the mind or memory of Executive and whether compiled by
Employer and/or Executive, derives independent economic value from not being
readily known to or ascertainable by proper means by others who can obtain
economic value from its disclosure or use, that reasonable efforts have been
made by Employer to maintain the secrecy of such information, that such
information is the sole property of Employer and that any retention and use of
such information by Executive during his employment with Employer (except in the
course of performing his duties and obligations under this Agreement) or after
the termination of his employment will constitute a misappropriation of
Employer's trade secrets.
(b) POST-TERMINATION. Executive agrees that, upon termination of
Executive's employment with Employer, for any reason, Executive will return to
Employer, in good condition, all property of Employer, including without
limitation, the originals and all copies of all management, training, marketing
and selling manuals; promotional materials; other training and instructional
materials; financial information; vendor, owner, manager and product
information; customer lists; other customer information; and all other selling,
service and trade information and equipment. If such items are not returned,
Employer will have the right to charge Executive for all
10
<PAGE> 11
reasonable damages, costs, attorneys' fees and other expenses incurred in
searching for, taking, removing and/or recovering such property.
3.3 NONCOMPETITION. Executive and Employer recognize that Executive's
duties under this Agreement will entail the receipt of trade secrets and
confidential information, which include not only information concerning
Employer's current operations, procedures, suppliers and other contacts, but
also its short-range and long-range plans, and that such trade secrets and
confidential information may have been developed by Employer and its Affiliates
at substantial cost and constitute valuable and unique property of Employer.
Accordingly, Executive acknowledges that the foregoing makes it reasonably
necessary for the protection of Employer's business interests that Executive not
compete with Employer or any of its Affiliates during the term of this Agreement
and for a reasonable and limited period thereafter. Therefore, during the term
of this Agreement and for one year after termination of the Agreement, Executive
shall not have any investment in a Competing Business other than a de minimis
investment and shall not render personal services to any such Competing Business
in any manner, including, without limitation, as owner, partner, director,
trustee, officer, employee, consultant or advisor thereof; PROVIDED, HOWEVER,
that this Section 3.3 shall not apply if Executive terminates his employment for
Good Reason or Employer terminates Executive other than for Cause. For purposes
of the preceding sentence, a de minimis investment is ownership of less than 1/2
of 1% of the outstanding stock or debt of any Competing Business.
Notwithstanding Section 2.7 above, if Executive shall breach the
covenants contained in this Section 3.3 or in Section 3.2, Employer shall have
no further obligations to Executive pursuant to this Agreement and may recover
from Executive all such damages as it may be entitled to at law or in equity. In
addition, Executive acknowledges that any such breach is likely to result in
immediate and irreparable harm to Employer for which money damages are likely to
be inadequate. Accordingly, Executive consents to injunctive and other
appropriate equitable relief that Employer
11
<PAGE> 12
may seek to protect Employer's rights under this Agreement. Such relief may
include, without limitation, an injunction to prevent Executive from disclosing
any trade secrets or confidential information concerning Employer to any Entity,
to prevent any Entity from receiving from Executive or using any such trade
secrets or confidential information and/or to prevent any Entity from retaining
or seeking to retain any other employees of Employer.
3.4 CONFLICTS OF INTEREST. Executive shall not engage in any activity
that would violate any Conflict of Interest or Business Ethics Statement of
Employer that Executive may sign from time to time.
ARTICLE IV
----------
OTHER BENEFITS
--------------
4.1 EMPLOYEE BENEFITS.
(a) Executive and Executive's family, as applicable, shall be
eligible for participation in and shall receive all benefits under the savings
and retirement programs, welfare benefit plans, fringe benefit programs and
perquisites that Employer provides to senior executives of Employer in effect
from time to time.
(b) Subject to Section 5.1, upon termination under Section 2.7(a)
hereof:
(i) The benefits described in Section 4.1(a) will continue
until the Executive obtains new employment providing substantially similar
benefits, but in any event no later than two years after the date of
termination. During the period of continued coverage pursuant to this
Subsection, the Executive will be required to pay the same cost of coverage,
co-pays, deductibles and other similar payments paid by active senior executives
of the Company having elected the same type of coverage. The Executive will
cease to be eligible for continued health and life insurance benefits provided
by the Employer if he (I) waives such coverage or (II) fails to pay any amount
required for such coverage.
12
<PAGE> 13
(ii) The Executive will be reimbursed by the Employer for
reasonable expenses incurred for outplacement counseling that are pre-approved
by the Employer's Senior Vice President - Human Resources, (II) that do not
exceed 15% of the Executive's Base Salary and (III) that are incurred by the
Executive within 6 months following such termination.
4.2 RELOCATION. Executive may, but is not required to, relocate to a
residence within 35 miles of downtown Dayton, Ohio. If Executive relocates as
described in the previous sentence within six months of the date hereof,
payments and reimbursements made on behalf of or to Executive on account of such
relocation shall be made in accordance with the Employer's applicable relocation
policy for transferred employees.
4.3 VACATION AND SICK LEAVE. Executive shall be entitled to vacation
and sick leave each year, in accordance with Employer's policies in effect from
time to time; PROVIDED, HOWEVER, that Executive shall be entitled to a minimum
of four weeks vacation per year.
ARTICLE V
---------
MISCELLANEOUS
-------------
5.1 RELEASE. Payment of the amount described in Section 2.7(a) and the
benefits described in Section 4.1(b) to the Executive is conditioned upon the
Executive executing and delivering a release satisfactory to the Employer
releasing the Employer from any and all claims, demands, damages, actions and/or
causes of action whatsoever, which the Executive may have had on account of the
termination of his employment, including, but not limited to claims of
discrimination, including on the basis of sex, race, age, national origin,
religion, or handicapped status (with all applicable periods during which the
Executive may revoke the release or any provision thereof having expired), and
any and all claims, demands and causes of action for retirement (other than
under the retirement plans maintained by the Employer that are qualified under
Section 401(a) of the Code or under any "welfare benefit plan" of the Employer
(as the term
13
<PAGE> 14
"welfare benefit plan" is defined in Section 3(1) of the Employee Retirement
Income Security Act of 1974, as amended)), severance or other termination pay.
Such release will not, however, apply to the ongoing obligations of the Employer
arising under this Agreement, or rights of indemnification the Executive may
have under the Employer's policies or by contract or by statute.
5.2 SUCCESSORS AND BINDING AGREEMENT.
(a) Employer will require any successor to all or substantially all
of the businesses or assets of Employer (whether direct or indirect, by
purchase, merger, consolidation, reorganization or otherwise), by agreement in
form and substance reasonably satisfactory to Executive, expressly to assume and
agree to perform this Agreement in the same manner and to the same extent
Employer would be required to perform if no such succession had taken place.
This Agreement will be binding upon and inure to the benefit of Employer and any
successor to Employer, including without limitation any persons acquiring
directly or indirectly all or substantially all of the businesses or assets of
Employer whether by purchase, merger, consolidation, reorganization or otherwise
(and such successor will thereafter be deemed "Employer" for the purposes of
this Agreement).
(b) This Agreement will inure to the benefit of and be enforceable
by the Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees and legatees.
(c) This Agreement is personal in nature and neither of the parties
hereto will, without the consent of the other, assign, transfer or delegate this
Agreement or any rights or obligations hereof except as expressly provided in
Sections 5.2(a) and (b). Without limiting the generality or effect of the
foregoing, Executive's right to receive payments hereof will not be assignable,
transferable or delegable, whether by pledge, creation of a security interest,
or otherwise, other than by a transfer by Executive's will or by the laws of
descent and distribution and, if
14
<PAGE> 15
Executive attempts any assignment or transfer contrary to this Section 5.2,
Employer will have no liability to pay any amount Executive attempts to assign,
transfer or delegate.
5.3 GOVERNING LAW; ARBITRATION. This Agreement has been executed on
behalf of Employer by an officer of Employer located in the City of Moraine,
Ohio. This Agreement and all questions arising in connection with it shall be
governed by the internal substantive law of the State of Ohio, without giving
effect to principles of conflict of laws. Subject to the following sentence, all
disputes arising out of, or in connection with this Agreement, which are not
promptly settled by mutual agreement of the parties hereto, shall be finally
settled by arbitration in accordance with the rules of the American Arbitration
Association. Notwithstanding, Employer may, at its option, seek injunctive
relief as contemplated in Section 3.3 above either in lieu of or in addition to
the arbitration remedies provided for in this Section 5.3.
Arbitration shall be conducted by one or more arbitrators appointed in
accordance with such rules on the request of any party to the agreement giving
rise to the dispute. Arbitration shall take place in Dayton, Ohio. Such
arbitration shall be governed by this Agreement and shall be binding upon the
parties hereto. The validity, construction, performance or termination of any
agreement by and between the parties submitted to arbitration shall be
determined on the basis of the contractual obligations of the parties. The
arbitrator shall determine his jurisdiction over persons and subject matter if
such jurisdiction is challenged by one of the parties. The award of the
arbitrator shall: (a) be rendered in writing stating the grounds on which the
arbitrators base same, and how the costs of arbitration are being borne; the
expenses of Executive to successfully petition or defend his interests shall be
borne by Employer; and (b) be carried out voluntarily and without delay, and
failing this, be made enforceable through either party by entry of a judgment in
a competent court of any jurisdiction.
15
<PAGE> 16
5.4 SEVERABILITY. If any portion of this Agreement is held to be
invalid or unenforceable, such holding shall not affect any other portion of
this Agreement.
5.5 ENTIRE AGREEMENT. This Agreement comprises the entire agreement
between the parties hereto and, as of the date hereof, supersedes any prior
agreements between the parties. This Agreement may not be modified, renewed or
extended except by a written instrument referring to this Agreement and executed
by the parties hereto.
5.6 NOTICES. Any notice or consent required or permitted to be given
under this Agreement shall be in writing and shall be effective: (a) when given
by personal delivery, (b) one business day after being sent by overnight
delivery service or (c) five business days after being sent by certified U.S.
mail, return receipt requested, to the Secretary of Employer at its principal
place of business in the City of Moraine or to Executive at his last known
address as shown on the records of Employer.
5.7 WITHHOLDING TAXES. Employer may withhold from any amounts payable
under this Agreement all federal, state, city or other taxes as shall be
required pursuant to any law or governmental regulation or ruling.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date and year first above written.
THE ELDER-BEERMAN STORES CORP.
By:________________________________________
Frederick J. Mershad
Chairman and Chief Executive Officer
___________________________________________
Steven D. Lipton
16
<PAGE> 1
Exhibit 21
SUBSIDIARIES OF THE ELDER-BEERMAN STORES CORP.
----------------------------------------------
The Bee-Gee Shoe Corp.
The El-Bee Chargit Corp.
The El-Bee Receivables Corporation
Elder-Beerman West Virginia, Inc.
S&T Financial Corp.
S&T Securities Corp.
<PAGE> 1
Exhibit 23
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in Registration Statement
Nos. 333-48367 and 333-483369 of The Elder-Beerman Stores Corp. on Form S-8 of
our report dated April 9, 1999, appearing in this Annual Report on Form 10-K of
The Elder-Beerman Stores Corp. for the year ended January 30, 1999.
DELOITTE & TOUCHE LLP
Dayton, Ohio
April 21, 1999
<PAGE> 1
Exhibit 24
THE ELDER-BEERMAN STORES CORP.
ANNUAL REPORT ON FORM 10-K
POWER OF ATTORNEY
- --------------------------------------------------------------------------------
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors
and officers of The Elder-Beerman Stores Corp., an Ohio corporation, hereby
constitutes and appoints each of Scott J. Davido and Steven D. Lipton as the
true and lawful attorney or attorney-in-fact, with full power of substitution
and revocation, for each of the undersigned and in the name, place and stead of
each of the undersigned, to sign on behalf of each of the undersigned an Annual
Report on Form 10-K for the fiscal year ended January 31, 1999 pursuant to the
Securities Exchange Act of 1934, as amended, and to sign any amendments to such
Annual Report, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting to each attorney or attorney-in-fact full power and authority to do so
and to perform any act requisite and necessary to be done as fully to all
intents and purposes as the undersigned might or could do in person, hereby
ratifying and confirming all that each attorney or attorney-in-fact or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
This Power of Attorney may be executed in multiple counterparts, each of which
shall be deemed an original with respect to the person executing it.
IN WITNESS WHEREOF, the undersigned have subscribed these presents as
of the 15th day of April, 1999.
<TABLE>
<CAPTION>
<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; Director
Executive Officer
(Principal Executive Officer)
/s/ Scott J. Davido /s/ Steven D. Lipton
- ------------------------------------------------- --------------------------------------------
Scott J. Davido Steven D. Lipton
Executive Vice President, Chief Financial Officer Senior Vice President, Controller
(Principal Financial Officer) (Principal Accounting Officer)
/s/ Bernard Olsoff /s/ Thomas J. Noonan, Jr.
- ------------------------------------------------- --------------------------------------------
Bernard Olsoff Thomas J. Noonan, Jr.
Director Director
/s/ Stewart M. Kasen /s/ Laura H. Pomerantz
- ------------------------------------------------- --------------------------------------------
Stewart M. Kasen Laura H. Pomerantz
Director Director
/s/ Steven C. Mason /s/ John J. Wiesner
- ------------------------------------------------- --------------------------------------------
Steven C. Mason John J. Wiesner
Director Director
/s/ Jack A. Staph
--------------------------------------------
Jack A. Staph
Director
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> JAN-30-1999
<PERIOD-START> FEB-01-1998
<PERIOD-END> JAN-30-1999
<CASH> 8,146
<SECURITIES> 0
<RECEIVABLES> 141,205
<ALLOWANCES> 4,377
<INVENTORY> 171,764
<CURRENT-ASSETS> 338,409
<PP&E> 164,440
<DEPRECIATION> (90,530)
<TOTAL-ASSETS> 453,959
<CURRENT-LIABILITIES> 86,932
<BONDS> 121,507
0
0
<COMMON> 266,683
<OTHER-SE> (29,182)
<TOTAL-LIABILITY-AND-EQUITY> 453,959
<SALES> 632,420
<TOTAL-REVENUES> 657,993
<CGS> 450,460
<TOTAL-COSTS> 450,460
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 5,046
<INTEREST-EXPENSE> 11,844
<INCOME-PRETAX> 20,787
<INCOME-TAX> (3,356)
<INCOME-CONTINUING> 25,461
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 25,461
<EPS-PRIMARY> 1.81
<EPS-DILUTED> 1.76
</TABLE>
