Exhibit 3.1
AMENDED ARTICLES OF INCORPORATION
OF
THE ELDER-BEERMAN STORES CORP.
ARTICLE I
The name of the corporation is The Elder-Beerman Stores Corp. (the
"Corporation").
ARTICLE II
The place in the State of Ohio where the Corporation's principal office is
located is the City of Moraine, Montgomery County.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or activity for
which corporations may be formed under Sections 1701.01 to 1701.98, inclusive,
of the Ohio Revised Code.
ARTICLE IV
A. AUTHORIZED CAPITAL STOCK. The Corporation is authorized to issue 30,000,000
shares of capital stock, consisting of 25,000,000 shares of common stock,
without par value ("Common Stock"), and 5,000,000 shares of preferred stock,
without par value ("Preferred Stock").
B. PREFERRED STOCK. The Board of Directors shall have authority to issue
Preferred Stock from time to time in one or more classes or series. The express
terms of shares of a different series of any particular class shall be identical
except for such variations as may be permitted by law. Without limiting the
generality of the foregoing, the initial classes of Preferred Stock shall be
designated Class A Preferred Stock, Class B Preferred Stock, and Class C
Preferred Stock. Subject to such express terms as may hereafter be adopted by
the Board of Directors, the voting rights of Class A Preferred Stock, Class B
Preferred Stock and Class C Preferred Stock shall be follows:
1. Each holder of Class A Preferred Stock shall be entitled to 100
votes per share and, except as otherwise required by law, shall vote together
with the Common Stock as a single class on all matters properly submitted to a
vote at a meeting of the shareholders.
2. Each holder of Class B Preferred Stock shall be entitled to one vote
per share and, except as otherwise required by law, shall vote together with the
Common Stock as a single class on all matters properly submitted to a vote at a
meeting of shareholders.
3. Holders of Class C Preferred Stock shall have no voting rights.
ARTICLE V
The Board of Directors shall be authorized hereby to exercise all powers now or
hereafter permitted by law providing rights to the Board of Directors to adopt
amendments to these Amended Articles of Incorporation to fix or change the
express terms of any unissued or treasury shares of any class, including,
without limiting the generality of the foregoing: division of such shares into
series and the designation and authorized number of shares of each series;
voting rights of such shares (to the extent now or hereafter permitted by law);
dividend or distribution rate; dates of payment of dividends or distributions
and the dates from which they are cumulative; liquidation price; redemption
rights and price; sinking fund requirements; conversion rights; and restrictions
on the issuance of shares of the same series or any other class or series; all
as may be established by resolution of the Board of Directors from time to time
(collectively, a "Preferred Stock Designation").
ARTICLE VI
Except as may be provided in any Preferred Stock Designation, holders of shares
of capital stock of the Corporation shall not be entitled to cumulative voting
rights in the election of directors.
ARTICLE VII
Except as may be provided in any Preferred Stock Designation, no holder of any
shares of capital stock of the Corporation shall have any preemptive right to
acquire any shares of unissued capital stock of any class or series, now or
hereafter authorized, or any treasury shares or securities convertible into such
shares or carrying a right to subscribe to or acquire such shares of capital
stock.
ARTICLE VIII
The Corporation may from time to time, pursuant to authorization by the Board of
Directors and without action by the shareholders, purchase or otherwise acquire
capital stock of the Corporation of any class or classes in such manner, upon
such terms and in such amounts as the Board of Directors shall determine;
subject, however, to such limitation or restriction, if any, as is contained in
any Preferred Stock Designation at the time of such purchase or acquisition.
ARTICLE IX
Except as may be provided in any Preferred Stock Designation, the Board of
Directors shall consist of not less than eight nor more than 11 directors, as
shall be fixed from time to time in the manner provided in the Amended Code of
Regulations of the Corporation. Except as provided otherwise in any Preferred
Stock Designation, directors may be elected by the shareholders only (i) at an
annual meeting of shareholders or (ii) at a special meeting of shareholders
called for that purpose if (a) no annual meeting is held, (b) an annual meeting
is held but directors are not elected at such annual meeting, or (c) the
shareholders increase the number of directors. Neither
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the holding of a special meeting of shareholders nor the election of directors
at a special meeting of shareholders will, by itself, shorten the term of any
incumbent director. No decrease in the number of directors constituting the
Board of Directors may shorten the term of any incumbent director. Election of
directors of the Corporation need not be by written ballot unless requested by
the presiding officer or by the holders of a majority of the voting power of the
Corporation present in person or represented by proxy at a meeting of
shareholders at which directors are to be elected. For purposes of these Amended
Articles of Incorporation, "voting power of the Corporation" means the aggregate
voting power of (1) all the outstanding shares of Common Stock of the
corporation and (2) all the outstanding shares of any class or series of capital
stock of the Corporation that has (i) rights to distributions senior to those of
the Common Stock including, without limitation, any relative, participating,
optional, or other special rights and privileges of, any qualifications,
limitations or restrictions on, such shares and (ii) voting rights entitling
such shares to vote generally in the election of directors.
ARTICLE X
Notwithstanding anything to the contrary contained in these Amended Articles of
Incorporation, the affirmative vote of the holders of a majority of the voting
power of the Corporation, voting together as a single class, shall be required
to amend or repeal, or adopt any provision inconsistent with any article
contained herein; provided, however, that this Article X shall not alter the
voting entitlement of shares that, by virtue of any Preferred Stock Designation,
are expressly entitled to vote on any amendment to these Amended Articles of
Incorporation.
ARTICLE XI
Notwithstanding anything to the contrary in these Amended Articles of
Incorporation, the Corporation shall not issue any nonvoting equity securities
to the extent prohibited by Section 1123 of the United States Bankruptcy Code as
in effect on the effective date of the Plan of Reorganization of the Corporation
and certain of its affiliated debtors, duly confirmed by the Bankruptcy Court in
Jointly Administered Case No. 95-33643; PROVIDED, HOWEVER, that this Article XI
(a) shall have no further force and effect beyond that required under Section
1123 of the United States Bankruptcy Code, (b) shall have such force and effect,
if any, only for so long as such Section is in effect and applicable to the
Corporation, and (c) in all events may be amended or eliminated in accordance
with applicable law as from time to time in effect.
ARTICLE XII
Any and every statute of the State of Ohio hereafter enacted, whereby the
rights, powers or privileges of corporations or of the shareholders of
corporations organized under the laws of the State of Ohio are increased or
diminished or in any way affected, or whereby effect is given to the action
taken by any number, less than all, of the shareholders of any such corporation,
shall apply to the Corporation and shall be binding not only upon the
Corporation but upon every shareholder of the Corporation to the same extent as
if such statute had been in force at the date of filing these Amended Articles
of Incorporation in the office of the Secretary of State of Ohio.
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ARTICLE XIII
These Amended Articles of Incorporation supersede the Corporation's existing
Articles of Incorporation and all prior amendments thereto.
ARTICLE XIV
Pursuant to Section 1704.06(A) of the Revised Code of Ohio, the provisions of
Chapter 1704 of the Ohio Revised Code (regarding regulation of transactions
involving interested shareholders) shall not be applicable to the Corporation.
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