-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, M3JskrWnMIb1TFMy9f7++nCJg9Z3ZjTDW/w1ljp/XV6bM+MYgN2wazv5p18sfD6a 9LI4lmZODmkDWr5Oz8VLkQ== 0000950152-02-005790.txt : 20020731 0000950152-02-005790.hdr.sgml : 20020731 20020731172929 ACCESSION NUMBER: 0000950152-02-005790 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20020731 EFFECTIVENESS DATE: 20020731 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ELDER BEERMAN STORES CORP CENTRAL INDEX KEY: 0000032020 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-DEPARTMENT STORES [5311] IRS NUMBER: 310271980 STATE OF INCORPORATION: OH FISCAL YEAR END: 0201 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-97463 FILM NUMBER: 02716533 BUSINESS ADDRESS: STREET 1: 3155 ELBEE RD CITY: DAYTON STATE: OH ZIP: 45439 BUSINESS PHONE: 9372962700 MAIL ADDRESS: STREET 1: 3155 EL BEE ROAD CITY: DAYTON STATE: OH ZIP: 45439 FORMER COMPANY: FORMER CONFORMED NAME: ELDER & JOHNSTON CO DATE OF NAME CHANGE: 19670823 S-8 1 l95536asv8.txt THE ELDER-BEERMAN STORES CORP. S-8 As filed with the Securities and Exchange Commission on July 31, 2002. Registration No. 333-_______ - ------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------- THE ELDER-BEERMAN STORES CORP. (Exact name of registrant as specified in its charter) Ohio 31-0271980 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 3155 El-Bee Road, Dayton, Ohio 45439 (Address of principal executive offices including zip code) THE ELDER-BEERMAN STORES CORP. EQUITY AND PERFORMANCE INCENTIVE PLAN (AS AMENDED AND RESTATED AS OF SEPTEMBER 21, 2000) (Full title of the plan) Steven D. Lipton Senior Vice President and Controller The Elder-Beerman Stores Corp. 3155 El-Bee Road, Dayton, Ohio 45439 (Name and address of agent for service) (937) 296-2700 (Telephone number, including area code, of agent for service) CALCULATION OF REGISTRATION FEE
- ------------------------ ---------------------- ---------------------- ---------------------- ---------------------- Title of Proposed Proposed Securities Amount Maximum Maximum Amount of to be to be Offering Price Aggregate Registration Registered Registered Per Share Offering Price Fee - ------------------------ ---------------------- ---------------------- ---------------------- ---------------------- Common Shares, without par value(2) 500,000 shares $2.30(1) $1,150,000(1) $105.80 - ------------------------ ---------------------- ---------------------- ---------------------- ----------------------
(1) Pursuant to Rule 457(c) and (h) under the Securities Act, this estimate is made solely for the purpose of calculating the amount of the registration fee and is based on the average of the high and low prices of the Common Shares of the Registrant on the Nasdaq National Market of The Nasdaq Stock Market, Inc. on July 25, 2002. (2) One preferred share purchase right (a "Right") will also be issued with respect to each Common Share. The terms of the Rights are described in the Registration Statement on Form 8-A filed by The Elder-Beerman Stores Corp. on November 11, 1998. Pursuant to General Instruction E to Form S-8, the contents of the registration statement on Form S-8 (Registration No. 333-48369) as filed with the Securities and Exchange Commission on March 20, 1998 to register the Common Shares, without par value, of the Registrant to be issued under The Elder-Beerman Stores Corp. Equity Performance and Incentive Plan (as amended and restated as of September 21, 2000) (the "Plan") are hereby incorporated by reference. This registration statement on Form S-8 is filed for the purpose of registering an additional 500,000 Common Shares of The Elder-Beerman Stores Corp., an Ohio corporation (the "Registrant") under the Plan. ITEM 8. EXHIBITS. The following Exhibits are being filed as part of this Registration Statement: 4(a) Amended Articles of Incorporation of the Registrant (previously filed as Exhibit 3(a) to the Form 10-K for the fiscal year ended January 31, 1998 (the "Form 10-K") and incorporated herein by reference) 4(b) Certificate of Amendment to the Amended Articles of Incorporation of the Registrant (previously filed as Exhibit 3(b) to the Registrant's Form 10-Q for the quarterly period ended October 28, 2000 (the "2000 3rd Quarter 10-Q") and incorporated herein by reference) 4(c) Amended Code of Regulations of the Registrant (previously filed as Exhibit 3(c) to the 2000 3rd Quarter 10-Q and incorporated herein by reference) 4(d) The Elder-Beerman Stores Corp. Equity and Performance Incentive Plan (As Amended and Restated as of September 21, 2000) (previously filed as Annex A to the Registrant's Proxy Statement dated August 21, 2000 and incorporated herein by reference) 4(e) The Registrant's Registration Statement on Form 8-A with respect to the preferred share purchase rights (the "Form 8-A") (previously filed on November 11, 1998 and incorporated herein by reference) 4(f) Rights Agreement by and between the Registrant and Norwest Bank Minnesota, N.A., dated as of December 30, 1997 (previously filed as Exhibit 4.1 to the Form 8-A and incorporated herein by reference) 4(g) 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) 5 Opinion of Counsel 23(a) Consent of Independent Auditors 23(b) Consent of Counsel (set forth in the opinion filed as Exhibit 5 to this Registration Statement) 24 Power of Attorney SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing this registration statement on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dayton, State of Ohio, on this 31st day of July, 2002. THE ELDER-BEERMAN STORES CORP. By: /s/ Steven D. Lipton ------------------------------------ Steven D. Lipton Senior Vice President and Controller Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE --------- ----- ---- /s/ Byron L. Bergren - ---------------------------------- President, Chief Executive Officer; July 31, 2002 Byron L. Bergren Director (Principal Executive Officer) /s/ Edward A. Tomechko Executive Vice President, Chief July 31, 2002 - ---------------------------------- Financial Officer, Secretary and Edward A. Tomechko Treasurer (Principal Financial Officer) /s/ Steven D. Lipton Senior Vice President and Controller July 31, 2002 - ---------------------------------- (Principal Accounting Officer) Steven D. Lipton * - ---------------------------------- Chairman of the Board of Directors July 31, 2002 Steven C. Mason * - ---------------------------------- Director July 31, 2002 Mark F. C. Berner * - ---------------------------------- Director July 31, 2002 Dennis S. Bookshester * - ---------------------------------- Director July 31, 2002 Eugene I. Davis * Director - ---------------------------------- July 31, 2002 Charles Macaluso * Director - ---------------------------------- July 31, 2002 Thomas J. Noonan * Director - ---------------------------------- July 31, 2002 Laura H. Pomerantz Director * July 31, 2002 - ---------------------------------- Jack A. Staph * Director - ---------------------------------- July 31, 2002 Charles H. Turner
* This registration statement has been signed on behalf of the above-named directors and officers of the Registrant by Steven D. Lipton, Senior Vice President and Controller of the Registrant, as attorney-in-fact pursuant to a power of attorney filed with the Securities and Exchange Commission as Exhibit 24 to this registration statement. DATED: July 31, 2002 By: /s/ Steven D. Lipton -------------------------------------------- Steven D. Lipton, Attorney-in-Fact EXHIBIT INDEX The following Exhibits are being filed as part of this Registration Statement: 4(a) Amended Articles of Incorporation of the Registrant (previously filed as Exhibit 3(a) to the Form 10-K for the fiscal year ended January 31, 1998 (the "Form 10-K") and incorporated herein by reference) 4(b) Certificate of Amendment to the Amended Articles of Incorporation of the Registrant (previously filed as Exhibit 3(b) to the Registrant's Form 10-Q for the quarterly period ended October 28, 2000 (the "2000 3rd Quarter 10-Q") and incorporated herein by reference) 4(c) Amended Code of Regulations of the Registrant (previously filed as Exhibit 3(c) to the 2000 3rd Quarter 10-Q and incorporated herein by reference) 4(d) The Elder-Beerman Stores Corp. Equity and Performance Incentive Plan (As Amended and Restated as of September 21, 2000) (previously filed as Annex A to the Registrant's Proxy Statement dated August 21, 2000 and incorporated herein by reference) 4(e) The Registrant's Registration Statement on Form 8-A with respect to the preferred share purchase rights (the "Form 8-A") (previously filed on November 11, 1998 and incorporated herein by reference) 4(f) Rights Agreement by and between the Registrant and Norwest Bank Minnesota, N.A., dated as of December 30, 1997 (previously filed as Exhibit 4.1 to the Form 8-A and incorporated herein by reference) 4(g) 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) 5 Opinion of Counsel 23(a) Consent of Independent Auditors 23(b) Consent of Counsel (set forth in the opinion filed as Exhibit 5 to this Registration Statement) 24 Power of Attorney EX-5 3 l95536aexv5.txt EXHIBIT 5 Exhibit 5 July 30, 2002 The Elder-Beerman Stores Corp. 3155 El-Bee Road Dayton, Ohio 45439 Re: 500,000 Shares of Common Stock Without Par Value Issued Pursuant to The Elder-Beerman Stores Corp. Equity and Performance Incentive Plan (As Amended and Restated as of September 21, 2000) ----------------------------------------------------------------------- Ladies and Gentlemen: We are acting as counsel for The Elder-Beerman Stores Corp., an Ohio corporation (the "COMPANY"), in connection with the issuance and sale of 500,000 shares of Common Stock, without par value, of the Company (the "COMMON SHARES") pursuant to The Elder-Beerman Stores Corp. Equity and Performance Incentive Plan (As Amended and Restated as of September 21, 2000) (the "PLAN"). In rendering this opinion, we have examined such documents and records, including an examination of originals or copies certified or otherwise identified to our satisfaction, and matters of law as we have deemed necessary for purposes of this opinion. Based upon the foregoing and subject to the assumptions, qualifications and limitations stated herein, we are of the opinion that: 1. The Common Shares are duly authorized and, when issued and delivered pursuant to the terms of the Plan against payment of the consideration therefor as provided therein, will be validly issued, fully paid, and nonassessable; and 2. When issued in accordance with the terms of the Rights Agreement, dated as of December 30, 1997, (the "RIGHTS AGREEMENT"), between the Company and Norwest Bank Minnesota, N.A., as rights agent, the Rights (as defined in the Rights Agreement) will be validly issued. Our examination of matters of law in connection with the opinions expressed herein has been limited to, and accordingly our opinions herein are limited to, the General Corporation Law of the State of Ohio. We express no opinion with respect to any other law of the State of Ohio or any other jurisdiction. The opinion set forth in paragraph 2 is limited to the valid issuance of the Rights under the corporation laws of the State of Ohio. We do not express any opinion herein with respect to any other aspect of the Rights, the effect of equitable principles or fiduciary considerations relating to the adoption of the Rights Agreement or the issuance of the Rights or the The Elder-Beerman Stores Corp. July 30, 2002 Page 2 enforceability of any particular provisions of the Rights Agreement. In rendering the opinion set forth in paragraph 2 above, we have assumed that the Directors of the Company have acted and will act in the good faith exercise of their business judgment with respect to the authorization of the issuance of the Rights and the execution of the Rights Agreement. In rendering the opinion set forth in paragraph 2 above, moreover, we note that our research indicates that there are no reported decisions applying Ohio law concerning the authorization or issuance of securities substantially similar to the Rights. In the absence of directly applicable judicial authority, we have considered the pertinent provisions of Ohio corporation law and the decisions of courts applying the laws of other jurisdictions to analogous factual situations. Although such decisions may be persuasive to Ohio courts, they have no binding precedential effect. We hereby consent to the filing of this opinion as Exhibit 5 to the Registration Statement on Form S-8 (the "REGISTRATION STATEMENT") filed by the Company to effect registration of the Common Shares and the Rights associated therewith under the Securities Act of 1933 (the "ACT") and to the reference to us under the caption "Legal Matters" in the Prospectus constituting a part of such Registration Statement. In giving such consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Securities and Exchange Commission promulgated thereunder. Very truly yours, /s/ Jones, Day, Reavis & Pogue EX-23.A 4 l95536aexv23wa.txt EXHIBIT 23(A) EXHIBIT 23(a) INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of The Elder-Beerman Stores Corp. on Form S-8, pertaining to 500,000 common shares registered under The Elder-Beerman Stores Corp. Equity and Performance Incentive Plan, of our report dated April 17, 2002, appearing in the Annual Report on Form 10-K of The Elder-Beerman Stores Corp. for the year ended February 2, 2002. DELOITTE & TOUCHE LLP Dayton, Ohio July 30, 2002 EX-24 5 l95536aexv24.txt EXHIBIT 24 Exhibit 24 DIRECTORS AND OFFICERS OF THE ELDER-BEERMAN STORES CORP. REGISTRATION STATEMENT ON FORM S-8 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 (the "Company"), hereby: (1) constitutes and appoints Scott J. Davido and Steven D. Lipton, collectively and individually, as his or her agent and attorney-in-fact, with full power of substitution and resubstitution, to (a) sign and file on his or her behalf and in his or her name, place and stead in any and all capacities (i) a Registration Statement on Form S-8 (the "Registration Statement") with respect to the registration under the Securities Act of 1933, as amended, of shares of the Company's common stock issuable under the benefit plan adopted under the name of The Elder-Beerman Stores Corp. Equity and Performance Incentive Plan (the "Plan") (ii) any and all amendments, including post-effective amendments, and exhibits to the Registration Statement and (iii) any and all applications or other documents to be filed with the Securities and Exchange Commission or any state securities commission or other regulatory authority with respect to the securities covered by the Registration Statement, and (b) do and perform any and all other acts and deeds whatsoever that may be necessary or required in the premises; and (2) ratifies and approves any and all actions that may be taken pursuant hereto by any of the above-named agents and attorneys-in-fact or their substitutes. IN WITNESS WHEREOF, the undersigned directors and officers of the Company have hereunto set their hands as of the 22nd day of May 2002. /s/ Steven C. Mason /s/ Charles Macaluso - -------------------------- --------------------------- Steven C. Mason Charles Macaluso /s/ Byron L. Bergren /s/ Thomas J. Noonan - -------------------------- --------------------------- Byron L. Bergren Thomas J. Noonan /s/ Mark F. C. Berner /s/ Laura H. Pomerantz - -------------------------- --------------------------- Mark F. C. Berner Laura H. Pomerantz /s/ Dennis S. Bookshester /s/ Jack A. Staph - -------------------------- --------------------------- Dennis S. Bookshester Jack A. Staph /s/ Eugene I. Davis /s/ Charles H. Turner - -------------------------- --------------------------- Eugene I. Davis Charles H. Turner -----END PRIVACY-ENHANCED MESSAGE-----