-----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, GbeLlWg4pjey3tQYLOuRy6Q5S+rHe/dvYlqoNhhDnRoLtt65F8l1Lwaiqab/Mckr 7ocuv/fIDwJH1QUsUO8CZQ== 0000950152-98-002210.txt : 19980323 0000950152-98-002210.hdr.sgml : 19980323 ACCESSION NUMBER: 0000950152-98-002210 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19980320 EFFECTIVENESS DATE: 19980320 SROS: NONE 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: SEC FILE NUMBER: 333-48367 FILM NUMBER: 98570129 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 S-8 1 THE ELDER-BEERMAN STORES CORP--FORM S-8 1 As filed with the Securities and Exchange Commission on March 20, 1998 Registration No. =============================================================================== SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------- THE ELDER-BEERMAN STORES CORP. - ------------------------------------------------------------------------------- (Exact Name of Registrant as Specified in Its Charter) Ohio 31-0271980 - ------------------------------------- ------------------------------------ (State or Other Jurisdiction of (I.R.S. Employer Identification No.) Incorporation or Organization) 3155 El-Bee Road, Dayton, Ohio 45439 - ------------------------------------- ------------------------------------ (Address of Principal Executive (Zip Code) Offices) THE ELDER-BEERMAN STORES CORP. EMPLOYEE STOCK PURCHASE PLAN - -------------------------------------------------------------------------------- (Full Title of the Plans) SCOTT J. DAVIDO, ESQ. SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY The Elder-Beerman Stores Corp. 3155 El-Bee Road Dayton, Ohio 45439 - ------------------------------------------------------------------------------- (Name and Address of Agent For Service) (937) 296-2700 - ------------------------------------------------------------------------------- (Telephone Number, Including Are Code, of Agent For Service) CALCULATION OF REGISTRATION FEE
=========================================================================================================================== PROPOSED MAXIMUM PROPOSED MAXIMUM TITLE OF SECURITIES TO OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF BE REGISTERED AMOUNT TO BE REGISTERED SHARE (1) PRICE (1) REGISTRATION FEE (1) - -------------------------------------------------------------------------------------------------------------------------- Common Stock, without par value 625,000 $20.625 $12,890,625 $3,802.73 =========================================================================================================================
(1) Calculated in accordance with Rules 457(h)(1) and 457(c), based on the average of the high and low sales prices reported on the Nasdaq National Market System on March 17, 1998. -1- 2 PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS The information called for by Part I of this Registration Statement on Form S-8 (the "Registration Statement") is included in the description of The Elder-Beerman Stores Corp. Employee Stock Purchase Plan (the "Plan") to be delivered to persons eligible to participate in the Plan. Pursuant to the Note to Part I of Form S-8, this information is not being filed with or included in this Registration Statement. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE. The following documents filed by The Elder-Beerman Stores Corp. (the "Company") with the Securities and Exchange Commission are incorporated in this Registration Statement by reference: (a) the Company's Registration Statement on Form 10 (Commission File No. 0-2788) filed on November 26, 1997, as amended by Form 10/A-1 on January 23, 1998 and Form 10/A-2 on February 12, 1998 (the "Form 10"); (b) the Company's Current Report on Form 8-K dated January 29, 1998; and (c) description of the Common Stock of the Company contained in the Form 10, including any amendment filed for the purpose of updating such description. All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be a part thereof from the date of filing of such documents. Any statement made in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which is also incorporated or deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. The validity of the Company's Common Stock to be issued in connection with the Registration Statement will be passed upon by Scott J. Davido, Esq., Senior Vice President, General Counsel and Secretary of the Company. Mr. Davido has options to purchase 21,000 shares of the Company's Common Stock. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Division (E) of Section 1701.13 of the Ohio General Corporation Law governs indemnification by a corporation and provides as follows: (E) (1) A corporation may indemnify or agree to indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending, or completed action, suit, or proceeding, -2- 3 whether civil, criminal, administrative, or investigative, other than an action by or in the right of the corporation, by reason of the fact that he is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, trustee, officer, employee, member, manager, or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust or other enterprise, against expenses, including attorney's fees, judgments, fines, and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit, or proceeding, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, if he had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit, or proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, he had reasonable cause to believe that his conduct was unlawful. (2) A corporation may indemnify or agree to indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending, or completed action or suit by or in the right of the corporation to procure a judgment in its favor, by reason of the fact that he is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, trustee, officer, employee, member, manager, or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterprise, against expenses, including attorney's fees, actually and reasonably incurred by him in connection with the defense or settlement of such action or suit, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect of any of the following: (a) Any claim, issue, or matter as to which such person is adjudged to be liable for negligence or misconduct in the performance of his duty to the corporation unless, and only to the extent that, the court of common pleas or the court in which such action or suit was brought determines, upon application, that, despite the adjudication of liability, but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses as the court of common pleas or such other court shall deem proper; (b) Any action or suit in which the only liability asserted against a director is pursuant to section 1701.95 of the Revised Code. (3) To the extent that a director, trustee, officer, employee, member, manager, or agent has been successful on the merits or otherwise in defense of any action, suit, or proceeding referred to in division (E)(1) or (2) of this section, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses, including attorney's fees, actually and reasonably incurred by him in connection with the action, suit, or proceeding. (4) Any indemnification under division (E)(1) or (2) of this section, unless ordered by a court, shall be made by the corporation only as authorized in the specific case, upon a determination that indemnification of the director, trustee, officer, employee, member, manager, or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in division (E)(1) or (2) of this section. Such determination shall be made as follows: (a) By a majority vote of a quorum consisting of directors of the indemnifying corporation who were not and are not parties to or threatened by the action, suit, or proceeding referred to in division (E)(1) or (2) of this section; (b) If the quorum described in division (E)(4)(a) of this section is not obtainable or if a majority vote of a quorum of disinterested directors so directs, in a written opinion by independent legal counsel other than an attorney, or a firm having associated with it an attorney, -3- 4 who has been retained by or who has performed services for the corporation or any person to be indemnified within the past five years; (c) By the shareholders; or (d) By the court of common pleas or the court in which such action, suit, or proceeding referred to in division (E)(1) or (2) of this section was brought. Any determination made by the disinterested directors under division (E)(4)(a) or by independent legal counsel under division (E)(4)(b) of this section shall be promptly communicated to the person who threatened or brought the action or suit by or in the right of the corporation under division (E)(2) of this section, and, within ten days after receipt of such notification, such person shall have the right to petition the court of common pleas or the court in which such action or suit was brought to review the reasonableness of such determination. (5) (a) Unless at the time of a director's act or omission that is the subject of an action, suit, or proceeding referred to in division (E)(1) or (2) of this section, the articles or the regulations of a corporation state, by specific reference to this division, that the provisions of this division do not apply to the corporation and unless the only liability asserted against a director in an action, suit, or proceeding referred to in division (E)(1) or (2) of this section is pursuant to section 1701.95 of the Revised Code, expenses, including attorney's fees, incurred by a director in defending the action, suit, or proceeding shall be paid by the corporation as they are incurred, in advance of the final disposition of the action, suit, or proceeding, upon receipt of an undertaking by or on behalf of the director in which he agrees to both of the following: (i) Repay such amount if it is proved by clear and convincing evidence in a court of competent jurisdiction that his action or failure to act involved an act or omission undertaken with deliberate intent to cause injury to the corporation or undertaken with reckless disregard for the best interests of the corporation; (ii) Reasonably cooperate with the corporation concerning the action, suit, or proceeding. (b) Expenses, including attorney's fees, incurred by a director, trustee, officer, employee, member, manager, or agent in defending any action, suit, or proceeding referred to in division (E)(1) or (2) of this section, may be paid by the corporation as they are incurred, in advance of the final disposition of the action, suit, or proceeding, as authorized by the directors in the specific case, upon receipt of an undertaking by or on behalf of the director, trustee, officer, employee, member, manager, or agent to repay such amount, if it ultimately is determined that he is not entitled to be indemnified by the corporation. (6) The indemnification authorized by this section shall not be exclusive of, and shall be in addition to, any other rights granted to those seeking indemnification under the articles, the regulations, any agreement, a vote of shareholders or disinterested directors, or otherwise, both as to action in their official capacities and as to action in another capacity while holding their offices or positions, and shall continue as to a person who has ceased to be a director, trustee, officer, employee, member, manager, or agent and shall inure to the benefit of the heirs, executors, and administrators of such a person. (7) A corporation may purchase and maintain insurance or furnish similar protection, including, but not limited to, trust funds, letters of credit, or self-insurance, on behalf of or for any person who is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, trustee, officer, employee, member, manager, or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterprise, against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability under this section. Insurance may be purchased from or maintained with a person in which the corporation has a financial interest. -4- 5 (8) The authority of a corporation to indemnify persons pursuant to division (E)(1) or (2) of this section does not limit the payment of expenses as they are incurred, indemnification, insurance, or other protection that may be provided pursuant to divisions (E)(5), (6), and (7) of this section. Divisions (E)(1) and (2) of this section do not create any obligation to repay or return payments made by the corporation pursuant to division (E)(5), (6), or (7). (9) As used in division (E) of this section, "corporation" includes all constituent entities in a consolidation or merger and the new or surviving corporation, so that any person who is or was a director, officer, employee, trustee, member, manager, or agent of such a constituent entity, or is or was serving at the request of such constituent entity as a director, trustee, officer, employee, member, manager, or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterprise, shall stand in the same position under this section with respect to the new or surviving corporation as he would if he had served the new or surviving corporation in the same capacity. Section 29 of the Company's Amended Code of Regulations governs indemnification by the Company and provides as follows: 29. INDEMNIFICATION. The Corporation shall indemnify, to the full extent then permitted by law, any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a member of the Board of Directors or an officer of the Corporation, or is or was serving at the request of the Corporation as a director, trustee, officer, employee or agent of another corporation, partnership, limited liability company, joint venture, trust or other enterprise. The Corporation shall pay, to the full extent then required by law, expenses, including attorney's fees, incurred by a member of the Board of Directors in defending any such action, suit or proceeding as they are incurred, in advance of the final disposition thereof, and may pay, in the same manner and to the full extent then permitted by law, such expenses incurred by any other person. The indemnification and payment of expenses provided hereby shall not be exclusive of, and shall be in addition to, any other rights granted to those seeking indemnification under any law, the Amended Articles of Incorporation, any agreement, vote of shareholders or disinterested members of the Board of Directors, or otherwise, both as to action in official capacities and as to action in another capacity while he or she is a member of the Board of Directors or an officer of the Corporation, and shall continue as to a person who has ceased to be a member of the Board of Directors or an officer of the Corporation or as to a person who has served at the request of the Corporation as a director, trustee, officer, employee or agent of another corporation, and shall inure to the benefit of the heirs, executors, and administrators of such persons. In addition, the Company has purchased insurance coverage that will insure directors and officers against certain liabilities that might be incurred by them in such capacity. The Company has also entered into indemnification agreements with certain directors and executive officers. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not applicable. ITEM 8. EXHIBITS.* 4(a) Amended Articles of Incorporation of the Company (Incorporated by reference to Exhibit 3(a) to the Form 10 of the Company (Commission File No. 0-2788) (the "Form 10")) 4(b) Amended Code of Regulations of the Company (Incorporated by reference to Exhibit 3(b) to the Form 10) 4(c) The Elder-Beerman Stores Corp. Employee Stock Purchase Plan 5 Legal Opinion of Scott J. Davido, Esq., Senior Vice President, General Counsel and Secretary of the Company -5- 6 23(a) Independent Auditors' Consent 23(b) Consent of Scott J. Davido, Esq. (set forth in the opinion filed as Exhibit 5 to this Registration Statement) 24 Power of Attorney of certain directors and executive officers of the Company - ------------------------------- * In lieu of an opinion of counsel concerning compliance with the requirements of the Employee Retirement Income Security Act of 1974, as amended, and an Internal Revenue Service ("IRS") determination letter that the Plan is qualified under Section 401 of the Internal Revenue Code of 1986, as amended, the Company hereby undertakes to submit the Plan and any amendments thereto to the IRS in a timely manner and will make all changes required by the IRS in order to qualify the Plan ITEM 9. UNDERTAKINGS. (a) The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and (iii) to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3, Form S-8 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall -6- 7 be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. -7- 8 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement on Form S-8 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dayton, State of Ohio, on the 16th day of March, 1998. THE ELDER-BEERMAN STORES CORP. By: /s/ Scott J. Davido ----------------------------------- Scott J. Davido, Esq. Senior Vice President, General Counsel and Secretary Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement on Form S-8 has been signed below by the following persons in the capacities and on March 16, 1998. Signature Title --------- ----- * - ----------------------------- Frederick J. Mershad Chairman of the Board of Directors and Chief Executive Officer (Principal Executive Officer) * - ----------------------------- John A. Muskovich President, Chief Operating Officer and Chief Financial Officer; Director (Principal Financial Officer) * - ----------------------------- Steven D. Lipton Senior Vice President, Controller (Principal Accounting Officer) * - ----------------------------- Thomas J. Noonan, Jr. Director * - ----------------------------- Bernard Olsoff Director * - ----------------------------- Laura H. Pomerantz Director * - ----------------------------- Stewart M. Kasen Director * - ----------------------------- John J. Wiesner Director * - ----------------------------- Steven C. Mason Director * - ----------------------------- Jack A. Staph Director -8- 9 * The undersigned, pursuant to certain Powers of Attorney executed by each of the directors and officers noted above and previously filed or filed herewith contemporaneously with the Securities and Exchange Commission, by signing his name hereto, does hereby sign and execute this Registration Statement on Form S-8 on behalf of each of the persons noted above, in the capacities indicated. Dated: March 16, 1998 By: /s/ Scott J. Davido ---------------------------------- Scott J. Davido, Esq. Attorney-in-Fact EXHIBIT INDEX 4(a) Amended Articles of Incorporation of the Company (Incorporated by reference to Exhibit 3(a) to the Form 10 of the Company (Commission File No. 0-2788) (the "Form 10")) 4(b) Amended Code of Regulations of the Company (Incorporated by reference to Exhibit 3(b) to the Form 10) 4(c) The Elder-Beerman Stores Corp. Employee Stock Purchase Plan 5 Legal Opinion of Scott J. Davido, Esq., Senior Vice President, General Counsel and Secretary of the Company 23(a) Independent Auditors' Consent 23(b) Consent of Scott J. Davido, Esq. (set forth in the opinion filed as Exhibit 5 to this Registration Statement) 24 Power of Attorney of certain directors and executive officers of the Company -9- EX-4.C 2 EXHIBIT 4(C) 1 Exhibit 4(c) THE ELDER-BEERMAN STORES CORP. EMPLOYEE STOCK PURCHASE PLAN SECTION 1. PURPOSE The Elder-Beerman Stores Corp. Employee Stock Purchase Plan (the "Plan") is intended to advance the interests of The Elder-Beerman Stores Corp. (the "Company") and its stockholders by strengthening the Company's ability to attract and retain employees who have the training, experience and ability to enhance the profitability of the Company and to reward employees of the Company and its subsidiaries upon whose judgment, initiative and effort the successful conduct and development of their business largely depend. The Company further intends that options issued pursuant to the Plan shall constitute options issued pursuant to an "employee stock purchase plan" within the meaning of Section 423 of the Internal Revenue Code of 1986, as amended from time to time (the "Code"). SECTION 2. ADMINISTRATION The Plan shall be administered by a Committee that shall consist of the members of the Board of Directors of the Company (the "Committee"). The Committee may from time to time delegate all or any part of its authority under the Plan to a committee of the Board of Directors (or subcommittee thereof). To the extent of any such delegations, references in the Plan to the Committee are deemed to be references to any such committee or subcommittee. A majority of the Committee shall constitute a quorum, and the action of a majority of the members of the Committee present at any meeting at which a quorum is present, or acts unanimously approved in writing, shall be the acts of the Committee. The interpretation and construction by the Committee of any provision of the Plan or of any option granted under it shall be final. The Committee may establish any policies or procedures that in the discretion of the Committee are relevant to the operation and administration of the Plan and may adopt rules for the administration of the Plan. No member of the Committee shall be liable for any action or determination made in good faith with respect to the Plan or any option granted under it. SECTION 3. ELIGIBILITY (a) Options under the Plan to purchase the Company's common stock, par value $0.01 ("Common Stock"), will be offered to: (i) all exempt and full-time non-exempt employees of the Company or a subsidiary of the Company designated by the Company who have completed their 90-day probationary period; and (ii) all part-time non-exempt employees of the Company or a subsidiary of the Company designated by the Company who have been employed by the Company or any subsidiary thereof for two or more years; provided, however, that no employee shall be granted an option under the Plan if, immediately after the option was granted, such employee would own stock possessing 5% or more of the total combined voting power or value of all classes of stock of the Company. For purposes of this Subsection, stock ownership of an individual shall be determined under the rules of Section 424(d) of the Code, and stock that the employee may purchase under outstanding options shall be treated as owned by the employee. (b) An eligible employee may commence participation by completing an authorization for payroll deduction on a form provided by the Committee and filed with the Committee prior to the beginning of the Company's fiscal quarter next following the date the employee first meets the requirements of Subsection (a) of this Section. Such authorization will remain in effect, unless changed by the eligible employee in accordance with Section 5(c). -1- 2 (c) All payroll deductions made for an eligible employee will be credited to an account maintained for him under the Plan by the Committee (the "Account"). An eligible employee may not make any separate cash payment into such Account except as may be expressly authorized by the Committee. SECTION 4. STOCK The stock subject to the options granted under the Plan shall be fully registered, unrestricted shares of authorized and issued Common Stock. The aggregate number of shares that may be purchased under the Plan will not exceed 625,000 shares of Common Stock. In the event that the number of shares subject to options to be granted pursuant to any offering under the Plan exceeds the number of shares available to be purchased under the Plan, the shares available to be purchased shall be allocated on a pro rata basis among the options to be granted. SECTION 5. TERMS AND CONDITIONS OF OPTIONS Options granted pursuant to the Plan will be evidenced by agreements in such form as the Committee shall from time to time approve, provided that all employees granted such options shall have the same rights and privileges (except as otherwise provided in Subsections (a) and (e) of this Section). Options will be granted on the first day of each of the Company's fiscal quarters and will comply with and be subject to the following terms and conditions: (a) NUMBER OF SHARES. Each option granted hereunder shall state the number of shares to which it pertains, which number shall be determined, prior to the date of granting of such option, with respect to the employee to whom such option is offered, in accordance with uniform policies and procedures established by the Committee; provided, however, that the number of shares to which any option may pertain shall not exceed a maximum number to be computed in accordance with the following: Each eligible employee shall be deemed to have been granted an option to purchase a maximum number of whole shares of Common Stock equal to: (i) that percentage of the eligible employee's base compensation that he has elected to have withheld (but in no event more than 10%) multiplied by (ii) the eligible employee's base compensation (as hereinafter defined) not in excess of $62,500 during the applicable fiscal quarter of the Company (iii) divided by 85% of the fair market value of the Common Stock on the exercise date (as defined in Subsection (d) of this Section). If the number of shares computed in accordance with the foregoing includes a fraction, such number shall be rounded down to the next whole number. For purposes of this Subsection, the term "base compensation" is the quarterly cash compensation of the employee (assuming equal payments over the offering period) excluding, without limitation, any bonuses or awards under the Company's management incentive program, but including any commissions or productivity incentive, to be determined as of the pay period immediately preceding a date 30 days prior to the date of grant of such option. Notwithstanding the above, the Committee shall, in its discretion, have the authority to exclude, with respect to all employees, any other form of compensation from the definition of "base compensation," provided such exclusion shall comply with Section 423(b)(5) of the Code. In addition, the Committee shall, in determining the number of shares subject to an option, have the authority, prior to the date of grant of such option, to adjust the percentage to a percentage from 1% to 10%, both inclusive. Further, the Committee may, in its discretion, prior to any offering pursuant to the Plan, set a maximum aggregate number of shares (subject to Section 4 of the Plan) that may be purchased under options granted pursuant to the offering. In the event an eligible employee elects to withhold funds from his base compensation and/or reinvest dividends sufficient to purchase shares in excess of such maximum number, such amount will be retained in his Account and used to purchase shares in the next following fiscal quarter of the Company in which shares may be purchased. (b) OPTION PRICE. Each option will state the option price, which shall be determined by the Committee; provided, however, that such option price will not be an amount less than the lesser of 85% of the fair market value of the shares of Common Stock on the date of the granting of the option or 85% of the fair market value of such stock on the exercise date (as defined in Section 5(d) of the Plan). During such time as the Common Stock is quoted as a National Market Issue on the National Association of Securities Dealers Automated National -2- 3 Market Quotation System ("NASDAQ"), the fair market value per share shall be the average of the closing price of the Common Stock as quoted by NASDAQ on the last three trading days before the day the option is exercised. Subject to the foregoing, the Committee shall have full authority and discretion in fixing the option price. (c) MEDIUM AND TIME OF PAYMENT. The option price shall be payable in full in United States dollars, pursuant to uniform policies and procedures established by the Committee, on the exercise date (as defined in Section 5(d) of the Plan) of such option. The funds required for such payment will be derived from regular withholding from an eligible employee's base compensation in approximately equal installments over the term of the option or such other period as may be approved by the Committee. Any such funds withheld from an employee's compensation in excess of the actual option price shall be retained in the eligible employee's Account and used to purchase shares in the next following fiscal quarter of the Company. No interest shall accrue on the employee funds held by the Company. An employee shall have the right at any time to terminate his payroll deduction authorization from his compensation of amounts to be paid toward the option price, or to decrease the amount so withheld, by submitting a written request to the Company; provided, however, that if an eligible employee terminates his payroll deduction, he may not recommence a payroll deduction under the Plan until the expiration of one full fiscal quarter of the Company. An employee shall have the right to cancel his option in whole or in part and to obtain a refund of amounts withheld from his compensation by the Company by submitting a written request to the Company that must be received by the Company at least 5 business days prior to the exercise date. Such withheld amounts shall thereafter be paid to the employee within a reasonable period of time. No interest will accrue on such amounts. (d) TERM OF OPTION. The date on which the Common Stock to which an option pertains is to be purchased by the optionee (the "exercise date") will be the last day of the term of the option, except as otherwise provided in the Plan. The term of each option granted hereunder will be one fiscal quarter of the Company. Except to the extent an option has been canceled by the optionee prior to the exercise date, it shall be deemed automatically exercised on the exercise date to the extent of payments received from the optionee. (e) ACCRUAL LIMITATION. No option shall permit the rights of an optionee to purchase stock under all "employee stock purchase plans" (as defined in the Code) of the Company to accrue at a rate that exceeds $25,000 of fair market value of such stock (determined at the time the option is granted) for each fiscal year of the Company in which the option is outstanding at any time. (f) TERMINATION OF EMPLOYMENT. In the event that an optionee shall cease to be employed by the Company or any subsidiary of the Company for any reason (including death) before the exercise date such optionee's right to have his option exercised will be terminated. Any amounts withheld from the optionee's base compensation for purposes of the Plan that remain in the employee's Account will be refunded. No interest will accrue on such amount. (g) TRANSFER OF OPTION. No option shall be transferrable by an optionee. (h) ADJUSTMENTS. The Committee may make or provide for such adjustments in the option price and in the number or kind of shares of the Common Stock or other securities covered by outstanding options as the Committee in its sole discretion, exercised in good faith, may determine is equitably required to prevent dilution or enlargement of the rights of optionees that would otherwise result from (i) any stock dividend, stock split, combination of shares, recapitalization or other change in the capital structure of the Company, (ii) any merger, consolidation, spin-off, split-off, spin-out, split-up, separation, reorganization, partial or complete liquidation, or other distribution of assets, issuance of rights or warrants to purchase stock, or (iii) any other corporate transaction or event having an effect similar to any of the foregoing. Moreover, in the event of any such transaction or event, the Committee, in its discretion, may provide in substitution for any or all outstanding awards under the Plan such alternative consideration as it, in good faith, may determine to be equitable in the circumstances and may require in connection therewith the surrender of all awards so replaced, except that in no event shall the Committee substitute such alternative consideration that would disqualify the Plan as an "employee stock purchase plan" within the meaning of Section 423 of the Code. The Committee may also make or provide for such adjustments in the number or kind of shares of the Common Stock or other securities that may be sold under the Plan as the Committee in its sole discretion, exercised in good faith, may determine is appropriate to reflect any transaction or event described in clause (i) of the preceding sentence. -3- 4 The grant of an option pursuant to the Plan shall not affect in any way the right or power of the Company to make adjustments, reclassifications, reorganizations or changes in its capital or business structure or to merge or to consolidate or to dissolve, liquidate or sell or transfer all or any part of its business or assets. (i) RIGHTS AS A STOCKHOLDER. An optionee will have no rights as a stockholder with respect to any Common Stock covered by his option until the exercise date following payment in full. No adjustment will be made for dividends (ordinary or extraordinary, whether in cash, securities or other property) or distributions or other rights for which the record date is prior to the date of such exercise, except as provided in Subsection (h) of this Section. (j) OTHER PROVISIONS. The option agreements authorized under the Plan shall contain such other provisions as the Committee may deem advisable, provided that no such provisions may in any way be in conflict with the terms of the Plan. SECTION 6. NOTICE OF PURCHASE, STOCK CERTIFICATES, VOTING RIGHTS (a) After the exercise date in respect of each fiscal quarter, a report will be made by the Committee to each Participant stating the entries made to his Account, the number of shares of Common Stock purchased and the applicable purchase price. (b) Evidence of shares of Common Stock purchased under the Plan will be maintained under the Plan for the Account of each Participant and registered in the manner determined by the Committee. Certificates for the number of whole shares credited to a Participant's Account will be issued to a Participant at any time promptly upon written request to the Company; provided, however, that the Company may, at its election, issue such certificates at such time or times as the Committee deems appropriate, including, without limitation, following a Participant's termination of employment with the Company. (c) Shares of Common Stock held under the Plan for each Participant will be voted by the holder of record of such shares in accordance with the Participant's instructions. SECTION 7. TERM OF PLAN Options granted pursuant to the Plan will be granted within a period of 10 years from the confirmation date of the Joint Plan of Reorganization of The Elder-Beerman Stores Corp. and its subsidiaries. SECTION 8. AMENDMENT OR TERMINATION OF THE PLAN The Plan may be amended from time to time by the Board of Directors of the Company, but without further approval of the stockholders, no such amendment shall increase the aggregate number of shares of Common Stock that may be issued and sold under the Plan (except that adjustments authorized by the last sentence of the first paragraph of Section 5(h) of the Plan shall not be limited by this provision) or change the designation of Section 3 of the class of employees eligible to receive options. Furthermore, the Plan may not, without further approval of the stockholders, be amended in any manner that would cause options issued under it to fail to meet the requirements applicable to "employee stock purchase plans" as defined in Section 423 of the Code. The Plan may be terminated at any time by the Board of Directors of the Company, subject to the rights of outstanding optionees. SECTION 9. EFFECTIVE DATE OF PLAN The Plan will take effect on the effective date of the Joint Plan of Reorganization of The Elder-Beerman Stores Corp. and its subsidiaries. -4- EX-5 3 EXHIBIT 5 1 EXHIBIT 5 March 17, 1998 The Elder-Beerman Stores Corp. 3155 El-Bee Road Dayton, Ohio 45439 Re: Form S-8 Registration Statement ------------------------------- Gentlemen: As Senior Vice President, General Counsel and Secretary for The Elder-Beerman Stores Corp. (the "Company"), I am familiar with the Registration Statement, dated March 12, 1998, being filed by the Company with the Securities and Exchange Commission in connection with the registration under the Securities Act of 1933, as amended, of common stock, without par value ("Common Stock"), of the Company to be issued pursuant to the Company's Employee Stock Purchase Plan (the "Plan"). It is my opinion that the shares of Common Stock that may be issued pursuant to the Plan and the agreements contemplated thereunder (the "Agreements") will be, when issued in accordance with the Plan and such Agreements, validly issued, fully paid and nonassessable. I hereby consent to the filing of this opinion as Exhibit 5 to the above-referenced Registration Statement. Very truly yours, /s/ Scott J. Davido Scott J. Davido, Esq. Senior Vice President, General Counsel and Secretary EX-23.A 4 EXHIBIT 23(A) 1 Exhibit 23(a) INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of The Elder-Beerman Stores Corp. on Form S-8, pertaining to 625,000 common shares registered under The Elder-Beerman Stores Corp. Employee Stock Purchase Plan, of our report dated April 18, 1997 (which expresses an unqualified opinion and includes explanatory paragraphs relating to bankruptcy proceedings and the ability to continue as a going consent) appearing in the Registration Statement on Form 10 (Reg. No. 0-2788), as amended, filed with the Securities and Exchange Commission. DELOITTE & TOUCHE LLP Dayton, Ohio March 19, 1998 EX-24 5 EXHIBIT 24 1 EXHIBIT 24 THE ELDER-BEERMAN STORES CORP. REGISTRATION STATEMENT ON FORM S-8 POWER OF ATTORNEY - ------------------------------------------------------------------------------ The undersigned officer and/or director of The Elder-Beerman Stores Corp., an Ohio corporation (the "Company"), does hereby make, constitute and appoint Scott J. Davido and Steven D. Lipton, and each of them, with full power of substitution and resubstitution, as attorneys or attorney of the undersigned, to execute and file, under the Securities Act of 1933, as amended, a Registration Statement on Form S-8 relating to registration of common stock, without par value, of the Company issuable pursuant to the Company's Employee Stock Purchase Plan, and any and all amendments or exhibits thereto, and any or all applications or other documents to be filed with the Securities and Exchange Commission pertaining to such registration, with full power and authority to do and perform any and all acts and things whatsoever necessary, appropriate or desirable to be done in the premises, or in the name, place and stead of the said director and/or officer, hereby ratifying and approving the acts of said attorneys and any of them and any such substitute. IN WITNESS WHEREOF, the undersigned have subscribed these presents as of the 11th day of March, 1998. /s/ FREDERICK J. MERSHAD /s/ JOHN A. MUSKOVICH - ------------------------------------------------ ----------------------------------------------------- Frederick J. Mershad John A. Muskovich Chairman of the Board of Directors and Chief President, Chief Operating Officer and Chief Financial Executive Officer Officer; Director (Principal Executive Officer) (Principal Financial and Officer) /s/ STEVEN D. LIPTON /s/ THOMAS J. NOONAN, JR. ------------------------------------------------ ----------------------------------------------------- Steven D. Lipton Thomas J. Noonan, Jr. Senior Vice President, Controller Director (Principal Accounting Officer) /s/ BERNARD OLSOFF /s/LAURA H. POMERANTZ ------------------------------------------------ ----------------------------------------------------- Bernard Olsoff Laura H. Pomerantz Director Director /s/STEWART M. KASEN /s/ JOHN J. WIESNER ------------------------------------------------ ----------------------------------------------------- Stewart M. Kasen John J. Wiesner Director Director /s/ STEVEN C. MASON /s/ JACK A. STAPH ------------------------------------------------ ----------------------------------------------------- Steven C. Mason Jack A. Staph Director Director
-----END PRIVACY-ENHANCED MESSAGE-----