As filed with the Securities and Exchange Commission on July 28, 1994
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
GOTTSCHALKS INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or other jurisdiction of incorporation)
77-0159791
(I.R.S. Employer Identification No.)
7 River Park Place East, Fresno, CA
(Address of Principal Executive Offices)
93720
(Zip Code)
GOTTSCHALKS INC.
1994 KEY EMPLOYEE INCENTIVE STOCK OPTION PLAN
(Full title of the plan)
Warren L. Williams
General Counsel
7 River Park Place East
Fresno, CA 93720
(209) 434-8000
(Name, address and telephone number, including area code, of agent for
service)
copy to:
Judith T. Kitano, Esq.
Munger, Tolles & Olson
355 South Grand Avenue
Los Angeles, California 90071
CALCULATION OF REGISTRATION FEE
Title of securities to be registered: Common Stock, par value $.01 per share
Amount to be registered: 500,000 shares
Proposed maximum offering price per share: $9.6875*
Proposed maximum aggregate offering price: $4,843,750*
Amount of registration fee: $1,670
__________
* Pursuant to Rule 457(c) and (h), the proposed maximum offering price per
share and the proposed maximum aggregate offering price are estimates solely
for the purposes of calculating the registration fee and are based upon the
average of the high and low prices of the Common Stock of the Registrant on
the New York Stock Exchange on July 22, 1994.
<PAGE>
PART II
Item 3. Incorporation of Certain Documents by Reference
Gottschalks Inc. (the "Company" or "Registrant") hereby incorporates by
reference in this Registration Statement the following documents:
(a) The Company's Annual Report on Form 10-K for the fifty-two week
period ended January 29, 1994;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
April 30, 1994;
(c) The Company's Current Report on Form 8-K dated April 14, 1994; and
(d) The description of the Company's common stock, par value $.01 per
share (the "Common Stock"), contained in the Company's Registration Statement
on Form 8-A, dated March 13, 1986, and filed by the Company under Section
12(b) of the Exchange Act, as amended by Form 8-A, dated November 14, 1986,
and any amendment or report filed with the Securities Exchange Commission for
the purpose of updating such description of Common Stock.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained
herein or in a document, all or a portion of which is 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 in any subsequently filed document which also is or is
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 amended, to constitute a part of this Registration
Statement.
Item 6. Indemnification of Directors and Officers
Under Section 145 of the General Corporation Law of Delaware, the
Company may indemnify its directors and officers against expenses (including
attorneys' fees), judgments, fines, and amounts paid in settlement actually
and reasonably incurred in connection with any threatened, pending, or
completed civil, criminal, administrative, or investigative action, suit, or
proceeding, in which any such person was or is a party or is threatened to be
made a party by reason of his or her status as a director or officer of the
registrant, if such person acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
registrant and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. In the case of
an action by or in the right of the registrant, Section 145 provides that no
indemnification shall be made in respect of any claim, issue, or matter as to
which such person shall have been adjudged to be liable to the registrant
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought determines that indemnification is proper.
Section 145 further provides that to the extent a director or officer of the
registrant has been successful on the merits or otherwise in defense of any
such action or proceeding, or in defense of any claim, issue, or matter
therein, such person shall be indemnified against expenses (including
attorneys' fees) incurred in connection therewith.
The Company's Bylaws obligate the Company to indemnify its directors and
officers to the fullest extent permitted by the laws of Delaware as in effect
or, to the extent indemnification is broadened, as such laws may be amended.
In addition, the Company has entered into indemnification agreements with its
directors and officers providing for the indemnification of, and the advancing
of expenses to, such persons to the fullest extent permitted by Delaware law,
and setting forth certain procedures governing claims for indemnification.
The Company maintains policies insuring its officers and directors against
certain liabilities for actions taken in such capacities.
Under Section 102 of the General Corporation Law of Delaware, the
Company may eliminate or limit the personal liability of its directors to the
Company or its stockholders for monetary damages resulting from a breach of
the director's fiduciary duty of care, provided that a director's liability
may not be eliminated or limited for breaches of the duty of loyalty, acts or
omissions not in good faith or involving intentional misconduct or a knowing
violation of law, unlawful payments of dividends or unlawful stock purchases
or redemptions, or any transaction in which the director derived an improper
personal benefit. The Company's Certificate of Incorporation eliminates the
personal monetary liability of the registrant's directors to the fullest
extent permitted by Delaware law.
The Company's 1994 Key Employee Incentive Stock Option Plan and the
Company's 1994 Director Nonqualified Stock Option Plan (together, the "Plans")
also provide that each director of the Company shall be indemnified against
all costs and reasonable expenses, including attorneys' fees, incurred by him
or her in connection with any action, suit or proceeding, or in connection
with any appeal thereof, to which he or she may be a party by reason of any
action taken or failure to act under or in connection with the Plans or any
option granted thereunder.
Item 8. Exhibits
4.1 Gottschalks Inc. 1994 Key Employee Incentive Stock Option Plan
4.2 Bylaws of Gottschalks Inc., as amended <F1>
4.3 Certificate of Incorporation of Gottschalks Inc., as amended <F2>
5 Opinion of Counsel
23.1 Consent of Counsel (contained in Exhibit 5)
23.2 Consent of Deloitte & Touche
23.3 Consent of Ernst & Young
24 Power of Attorney (contained on the signature page hereof)
[FN]
<F1> Incorporated by reference to Exhibit No. 3.2 to the Company's Annual
Report on Form 10-K for the year ended February 2, 1991 (File No. 1-9100).
<F2> Incorporated by reference to Exhibit No. 3.1 to the Company's Annual
Report on Form 10-K for the year ended January 29, 1994 (File No. 1-09100).
[/FN]
Item 9. Undertakings
(a) The 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 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.
(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 that is incorporated by reference in the
registration statement 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.
(h) 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.
<PAGE>
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 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 Fresno, State of California, on this
25th day of July, 1994.
GOTTSCHALKS INC.
By:
Joseph W. Levy
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, each person whose signature appears
below constitutes and appoints Joseph W. Levy and Stephen J. Furst, jointly
and severally, as attorneys-in-fact, each with power of substitution, to sign
any amendments to this Registration Statement and to file the same, with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
each of said attorneys-in-fact, or his substitute or substitutes, may do or
cause to be done by virtue hereof.
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 date indicated.
Signature Title Date
/s/ Joseph W. Levy Chairman and Chief July 25, 1994
Joseph W. Levy Executive Officer
/s/ Alan A. Weinstein Senior Vice July 25, 1994
Alan A. Weinstein President, Chief
Financial Officer,
and Chief Accounting
Officer
/s/ Gerald H. Blum July 25, 1994
Gerald H. Blum Director
/s/ Karen L. Blum July 25, 1994
Karen L. Blum Director
/s/ Bret W. Levy July 25, 1994
Bret W. Levy Director
/s/ Sharon Levy July 25, 1994
Sharon Levy Director
/s/ Joseph J. Penbera July 25, 1994
Joseph J. Penbera Director
/s/ Frederick R. Ruiz July 25, 1994
Frederick R. Ruiz Director
/s/ O. James Woodward III July 25, 1994
O. James Woodward III Director
/s/ Max Gutmann July 25, 1994
Max Gutmann Director
/s/ Stephen J. Furst July 25, 1994
Stephen J. Furst President, Chief
Operating Officer
and Director
EXHIBIT INDEX
Exhibit
Number Description Page No.
4.1 Gottschalks Inc. 1994 Key Employee
Incentive Stock Option Plan
4.2 Gottschalks Inc. Bylaws
4.3 Gottschalks Inc. Certificate of
Incorporation
5 Opinion of Counsel
23.1 Consent of Counsel (contained in Exhibit No. 5)
23.2 Consent of Deloitte & Touche
23.3 Consent of Ernst & Young
24 Power of Attorney (contained on the signature
page hereof.)
EXHIBIT 4.1
GOTTSCHALKS INC.
1994 KEY EMPLOYEE INCENTIVE STOCK OPTION PLAN
1. Purpose. This Gottschalks Inc. 1994 Key Employee
Incentive Stock Option Plan (the "Plan") is intended as an
incentive for, and to encourage stock ownership by, key employees
of Gottschalks Inc. (the "Company"), or any Affiliate (as used
herein, the term, "Affiliate" means any parent or subsidiary
corporation of the Company within the meaning of Section 424(e)
and (f) of the Internal Revenue Code of 1986, as amended (the
"Code")), so that such employees may increase their interest in
the success of the Company as an equity holder, and to encourage
them to remain in the employ of the Company or any Affiliate. It
is intended that each option granted under this Plan will qualify
as an "incentive stock option" within the meaning of Section
422(b) of the Code.
2. Administration. The Plan shall be administered by the
Compensation Committee of the Board of Directors of the Company
(the "Committee"). The interpretation and construction by the
Committee of any provisions of the Plan or of any option granted
under it shall be final. The Committee shall be composed of no
less than three (3) persons who shall be members of the Board of
Directors of the Company (the "Board"). Each member of the
Committee shall be a "disinterested person" for purposes of the
Code and Rule 16b-3 of the Securities and Exchange Commission
under the Securities and Exchange Act of 1934 (the "1934 Act")
(or any successor provision at the time in effect). No director
shall be liable for any action or determination made in good
faith with respect to the Plan or any option granted under it.
With respect to persons subject to Section 16 of the 1934
Act, transactions under this Plan are intended to comply with all
applicable conditions of Rule 16b-3 or any successor rule or
rules under the 1934 Act. To the extent any provision of this
Plan or action by the Committee or Board fails to so comply, such
provision or action shall be deemed null and void, to the extent
permitted by law and deemed advisable by the Committee or the
Board.
3. Eligibility. The Committee shall determine from time to
time the persons who shall receive options hereunder and the
number of shares of Common Stock (hereinafter defined) subject to
such options; provided, however, options may be granted hereunder
only to persons who, at the time of the grant thereof, are key
employees of the Company or any Affiliate, and no options may be
granted to any non-employee members of the Board.
4. Stock. The stock subject to the options shall be shares
of the Company's authorized but unissued or reacquired Common
Stock, par value $0.01 per share (the "Common Stock"). The
aggregate number of shares which may be issued under options
granted pursuant to this Plan shall not exceed five hundred
thousand (500,000) shares of Common Stock. The maximum number of
shares upon which options may be granted to any optionee in any
calendar year shall be twenty-five thousand (25,000) shares of
Common Stock. The limitations established by each of the
preceding sentences shall be subject to adjustment as provided in
Section 5(h) of this Plan.
5. Terms and Conditions of Options. The stock options
granted pursuant to the Plan shall be authorized by the Committee
and shall be evidenced by a written stock option agreement, which
agreement shall be entered into by the Company and the optionee
to whom the option is granted, and which agreement shall include,
incorporate or conform to the following terms and conditions, and
such other terms and conditions not inconsistent therewith or
with the terms and conditions of this Plan as the Committee
considers appropriate in each case:
(a) Optionee's Agreement. As consideration for the
granting of an option under the Plan, each optionee must
agree to use his best efforts for the benefit of the Company
during his tenure of employment, but nothing in the Plan or
agreement shall be deemed to limit the right of the Company
to terminate any optionee's employment at any time for or
without cause.
(b) Number of Shares. The option shall state the number
of shares which it covers. The aggregate fair market value
(determined at the time the option is granted) of the shares
with respect to which incentive stock options are
exercisable for the first time by any optionee during any
calendar year under this Plan (and under all other plans of
the Company or any Affiliate) shall not exceed $100,000,
and/or any other limit as may be prescribed by the Code from
time to time. To the extent incentive stock options granted
to any optionee become exercisable in any calendar year into
shares with an aggregate fair market value (determined at
the time the option is granted) which exceeds this limit,
such options shall be treated as non-qualified stock
options.
(c) Option Price. The option shall state the option
price, which shall be not less than 100% of the fair market
value of each share of Common Stock on the date of the grant
of the option or, if the optionee, immediately before such
option is granted, owns (within the meaning of Sections 422
and 424 of the Code) stock possessing more than ten percent
(10%) of the total combined voting power of all classes of
stock of the Company or any Affiliate (a "10% Stockholder"),
shall be not less than one hundred ten percent (110%) of the
fair market value of each share of Common Stock on the date
of the grant of the option. For the purposes of this Plan,
and as used herein, the "fair market value" of a share of
Common Stock is the closing sales price on the date in
question (or, if there was no reported sale on such date, on
the last preceding day on which any reported sale occurred)
of the Common Stock on the New York Stock Exchange.
(d) Medium and Time of Payments. The option price shall
be payable upon the exercise of the option in cash or by
check. Exercise of an option shall not be effective until
the Company has received written notice of exercise,
specifying the number of whole shares to be purchased,
accompanied by payment in full of the aggregate exercise
price of the number of shares to be purchased. The Company
shall not in any case be required to issue and sell a
fractional share of stock.
(e) Term and Exercise of Options. Except as provided in
Sections 5(f), (g) and (h), the period of time within which
an option may be exercised shall be such period of time
specified in the option agreement, provided that such period
shall in no event extend past the tenth anniversary of the
date the option was granted (or the fifth anniversary if
granted to an employee who is a 10% Stockholder). During
the period within which an option is exercisable, it shall
be exercisable only in accordance with the terms specified
in the option agreement. Anything herein to the contrary
notwithstanding, on the tenth anniversary of the date the
option was granted (or on the fifth anniversary if granted
to an employee who is a 10% Stockholder), it shall expire
and be void with respect to any shares subject thereto which
have not been theretofore purchased.
(f) Termination of Employment Except for Death or
Disability. In the event that the optionee shall cease to
be employed by the Company or an Affiliate for any reason
other than for cause or by reason of the optionee's death or
disability (within the meaning of Section 22(e)(3) of the
Code), an option granted hereunder, to the extent not then
exercisable in accordance with its terms, shall terminate
and be without further effect. To the extent the option is
exercisable on the date of such termination, it may be
exercised by the optionee within the ninety-day period
following such termination, subject however to the condition
that no option shall be exercisable after the expiration of
ten years from the date such option was granted or such
shorter period as may be provided in the option agreement
pursuant to Section 5(e) hereof, and such option, to the
extent not exercised within said ninety-day period, shall in
all events terminate upon the expiration of said ninety-day
period. Whether authorized leave of absence or absence due
to military or governmental services shall constitute
termination of employment, for the purpose of the Plan,
shall be determined by the Committee, which determination
shall be final and conclusive.
Notwithstanding any other provisions set forth in
the Plan, if the optionee is terminated for cause, the stock
options granted to the optionee pursuant to the Plan shall
expire immediately, provided that if there is outstanding,
at the time of cessation or termination of employment, an
employment agreement between the optionee and the Company
and said employment agreement contains provisions for
termination of employment, provisions in the employment
agreement shall govern termination of the option.
Termination for cause shall include termination for
malfeasance or gross misfeasance in the performance of
duties or conviction of a felony or any conduct
intentionally detrimental to the interests of the Company or
an Affiliate, or any other cause specified in any employment
agreement between the Company and the optionee, and in any
event, the determination of the Committee or Board with
respect thereto shall be final and conclusive.
(g) Death or Disability of Optionee and Transfer of
Option. If the optionee shall cease to be employed by the
Company or any Affiliate due to his death or disability,
within the meaning of Section 22(e)(3) of the Code, while in
the employ of the Company or an Affiliate, an option granted
hereunder, to the extent not then exercisable in accordance
with its terms, shall terminate and be without further
effect. To the extent the option is exercisable on the day
of death or disability, it may be exercised at any time
within one year after the optionee's death or disability
(subject to the condition that no option shall be
exercisable after the expiration of ten years from the date
such option was granted or such shorter period as may be
provided in the option agreement in accordance with Section
5(e) hereof) by the optionee (or his or her guardian or
legal representative) if he has become disabled while in the
employ of the Company or an Affiliate, or if he shall die
while in the employ of the Company or an Affiliate, by the
executors or administrators of the optionee's estate or by
any person or persons who shall have acquired the option
directly from the optionee by bequest or inheritance, and
such option, to the extent not exercised within said one
year period, shall in all events terminate upon the
expiration of such one year period.
(h) Adjustments. If there shall be any change in the
Common Stock through merger, consolidation,
recapitalization, reincorporation, stock split, stock
dividend, or other change in the capital structure of the
Company, that event shall simultaneously, and without any
further action by the Committee, cause appropriate
adjustments to be made in (a) the number of shares subject
to, and the exercise price of, outstanding options in order
to preserve, but not to increase, the benefits of the
optionee, so that immediately after such event each optionee
shall be entitled, upon payment to the Company of the
aggregate amount of money provided in the option, to receive
that number of shares of Common Stock or other property that
he would have received if he had exercised the option in
full (without regard to any provisions relating to the dates
on which the option becomes exercisable) immediately prior
to such event; and (b) the aggregate number of shares of
Common Stock subject to this Plan.
Provided, however, that subject to any required action by
the stockholders of the Company, if there shall be a
Terminating Event (as hereinafter defined), each optionee
shall have the right immediately prior to such Terminating
Event to exercise his options to the extent not theretofore
exercised, whether or not they are then exercisable in the
ordinary course of events, unless there is a surviving
corporation or a parent or subsidiary corporation thereof
that shall assume (with appropriate changes) the outstanding
options or replace them with new options of comparable
value. The Company shall give reasonable notice of any
Terminating Event. Twenty (20) days after the date such
notice is sent, every option or any portion thereof
outstanding hereunder shall thereupon terminate, unless
there is a surviving corporation or a parent or subsidiary
corporation thereof that shall assume (with appropriate
changes) the outstanding options or replace them with new
options of comparable value. Notwithstanding the foregoing,
a merger effected solely for the purposes of reincorporating
the Company in a jurisdiction other than that in which the
Company is then incorporated shall not be subject to the
provisions of this paragraph; provided that all outstanding
options are assumed by the surviving corporation.
For purposes of this Plan, "Terminating Event" shall mean
(1) a dissolution or liquidation of the Company; (2) the
Company's not being the surviving corporation in any merger,
consolidation or reorganization; (3) acquisition of eighty
percent (80%) or more of the Company's then outstanding
voting stock by another corporation or person; or (4) the
Company's sale of substantially all of its assets and
property to another corporation or person. For purposes of
this Plan, if an optionee shall cease to be employed by the
Company at the same time as the occurrence of a Terminating
Event, the Terminating Event shall be deemed to have
occurred immediately prior to the time such optionee ceases
to be employed by the Company.
(i) Rights as a Stockholder. An optionee (or his
successor in interest if he be deceased) shall have no
rights as a stockholder with respect to any shares covered
by his option until the date of the issuance of a stock
certificate to him for such shares. No adjustment shall 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
such stock certificate is issued, except as provided in
Section 5(h) hereof.
(j) Modification, Extension and Renewal of Options.
Subject to the terms and conditions of and within the
limitations of the Plan, the Committee may modify, extend or
renew outstanding options granted under the Plan.
Notwithstanding the foregoing, however, no modification of
an option shall, without the consent of the optionee, alter
or impair any rights or obligations under any option
theretofore granted under the Plan.
(k) Investment Purpose. Each optionee receiving an
option pursuant hereto must represent that any shares
purchased pursuant to the option will be or are acquired for
his own account for investment and not with a view to, or
for offer or sale in connection with, the distribution of
any such shares; provided, however, that such representation
need not be given if (i) the shares to be subject to such
option to be granted to such optionee have been registered
under the Securities Act of 1933 ("Securities Act") and
registered or qualified, as the case may be, under
applicable state securities laws or (ii) counsel to the
Company determines that such registration is not necessary
for purposes of compliance with applicable federal and state
securities laws. Prior to the purchase of shares of Common
Stock upon exercise of an option, or any part thereof, the
optionee shall give such further representations of an
investment or other nature as reasonably required by the
Company in order to comply with applicable federal and state
securities laws. Furthermore, nothing herein or in any
option granted hereunder shall require the Company to issue
any shares upon exercise of any option if such issuance
would, in the opinion of counsel for the Company, constitute
a violation of the Securities Act or any other applicable
statute or regulation then in effect. Nothing herein shall
prohibit the optionee from using any shares acquired
pursuant to any option granted hereunder as collateral or
security for any debt, loan or other obligation.
(l) Other Provisions. The option agreements authorized
under the Plan shall contain such other provisions,
including, without limitation, restrictions upon the
exercise of the option, as the Committee shall deem
advisable. The stock option agreement shall contain such
limitations and restrictions upon the exercise of the option
to which it relates as shall be necessary for the option to
which such agreement relates to constitute an incentive
stock option within the meaning of section 422(b) of the
Code.
(m) Assignability. No option shall be transferable by
optionee other than by will or the laws of descent and
distribution and shall be exercisable during the lifetime of
the optionee only by the optionee or, if the optionee is
legally incompetent, by the optionee's legal representative.
6. Indemnification. Each director ("Indemnified Party")
shall be indemnified by the Company against all costs and
reasonable expenses, including attorneys' fees, incurred by him
in connection with any action, suit or proceeding, or in
connection with any appeal thereof, to which he may be a party by
reason of any action taken or failure to act under or in
connection with the Plan or any option granted hereunder, and
against all amounts paid by such Indemnified Party in settlement
thereof (provided such settlement is approved by independent
legal counsel selected by the Company) or paid by such
Indemnified Party in satisfaction of a judgment in any such
action, suit or proceeding, provided that within 60 days after
institution of any such action, suit or proceeding such
Indemnified Party shall in writing offer the Company the
opportunity, at its own expense, to handle and defend the same;
and provided further, however, anything contained in the Plan to
the contrary notwithstanding, there shall be no indemnification
of an Indemnified Party who is adjudged by a court of competent
jurisdiction to be guilty of, or liable for, willful misconduct,
gross neglect of duty, or criminal acts. The foregoing rights of
indemnification shall be in addition to such other rights of
indemnification as an Indemnified Party may have as a director of
the Company.
7. Amendment and Termination of the Plan. If not sooner
terminated, the Plan shall terminate automatically on the date
that is ten (10) years following the Effective Date. No options
may be granted hereunder after the termination of the Plan.
The Board may, from time to time, amend the Plan in any
respect whatsoever; provided, however, that without the approval
of the stockholders of the Company, no such amendment (i) shall
change the number of shares of Stock subject to the Plan or the
maximum number of shares upon which options may be granted to any
optionee in any calendar year (other than as provided in Section
5(h)), (ii) shall change the designation of the class of
employees eligible to receive options, (iii) shall decrease the
price at which options may be granted, or (iv) may be a material
amendment of the Plan, within the meaning of Rule 16b-3 under the
1934 Act (or any successor provision at the time in effect),
including any amendment which would materially increase the
benefits accruing to participants under the Plan or materially
modify the requirements as to eligibility for participation in
the Plan; and, provided further, no termination or amendment of
the Plan shall adversely affect the rights of an optionee under
an option, except with the consent of such optionee. The Board
may, with respect to any shares at the time not subject to
options, suspend, discontinue or terminate the Plan.
8. No Obligation to Exercise Option. The granting of an
option shall impose no obligation upon the optionee to exercise
such option.
9. Application of Funds. The proceeds received by the
Company from the sale of shares pursuant to options will be used
for general corporate purposes.
10. Governing Law. All questions arising with respect to
the provisions of the plan shall be determined by application of
the laws of the State of Delaware except to the extent Delaware
law is preempted by federal statute.
11. Date Plan is Effective. The Plan shall become
effective, as of the date of its adoption by the Board, when it
has been duly approved by the stockholders of the Company at a
meeting of the stockholders of the Company duly held in
accordance with applicable law within twelve months after the
date of adoption of the Plan by the Board (the "Effective Date").
If the Plan is not so approved, the Plan shall terminate and any
option granted hereunder shall be null and void.
EXHIBIT 5
MUNGER, TOLLES & OLSON
A Law Partnership Including Professional Corporations
355 South Grand Avenue
Thirty-Fifth Floor
Los Angeles, California 90071-1560
Telephone (213) 683-9100
Telex 6502019297
Facsimile (213) 687-3702
July 27, 1994
Gottschalks Inc.
7 River Park Place
Fresno, California 93729
Re: Registration Statement on Form S-8 relating
to the Gottschalks Inc. 1994 Key Employee
Incentive Stock Option Plan
Ladies and Gentlemen:
We have acted as counsel to Gottschalks Inc., a
Delaware corporation (the "Company"), in the preparation of a
Registration Statement on Form S-8 (the "Registration Statement")
filed with the Securities and Exchange Commission in connection
with the registration under the Securities Act of 1933, as
amended, of up to 500,000 shares of the Company's common stock,
par value $0.01 per share (the "Common Stock") to be issued upon
the exercise of options granted pursuant to the Gottschalks Inc.
1994 Key Employee Incentive Stock Option Plan (the "Plan").
For purposes of rendering this opinion, we have made
such legal and factual examinations as we have deemed necessary,
including the examination of resolutions adopted by the Board of
Directors of the Company.
This Opinion Letter is governed by, and is to be
interpreted in accordance with, the Legal Opinion Accord (the
"Accord") of the ABA Section of Business Law (1991). As a
consequence, it is subject to a number of qualifications,
exceptions, definitions, limitations on coverage and other
limitations, all as more particularly described in the Accord,
and this Opinion Letter should be read in conjunction therewith.
This Opinion Letter is also governed by, and is to be
interpreted in accordance with, the "California Provisions" and
the "California Generic Exception" as defined in the Business Law
Section of the State Bar of California Report on the Third-Party
Legal Opinion Report of the ABA Section of Business Law (dated
May 1992), and is therefore subject to a number of additional
qualifications, exceptions, and understandings, all as more
particularly described in the California Provisions and the
California Generic Exception, and this Opinion Letter should be
read in conjunction therewith as well.
The law covered by the opinions expressed herein is
limited to the Federal Law of the United States and the Law of
the State of California.
On the basis of and subject to the foregoing, we are of
the opinion that, when the shares of Common Stock are issued and
delivered in the manner provided for by the Plan against payment
of the exercise price therefor by the option holder, such shares
of Common Stock will be legally issued, fully paid and
nonassessable.
We hereby consent to the inclusion of this opinion in
the Registration Statement and to our being named as having
prepared it.
Very truly yours,
/s/ MUNGER, TOLLES & OLSON
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Gottschalks Inc. on Form S-8 of our report dated
March 17, 1994 (March 30, 1994 as to Notes 2 and 4 and April 13,
1994 as to the second paragraph of Note 3), (which expresses an
unqualified opinion and includes an explanatory paragraph
relating to the outcome of class action lawsuits which cannot
presently be determined), appearing in the Annual Report on Form
10-K of Gottschalks Inc. for the year ended January 29, 1994.
/S/ DELOITTE & TOUCHE
DELOITTE & TOUCHE
Fresno, California
July 25, 1994
EXHIBIT 23.3
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the 1994 Key Employee
Incentive Stock Option Plan of Gottschalks Inc. and subsidiaries
for the registration of 500,000 shares of its common stock, of
our report dated March 24, 1992, with respect to the consolidated
financial statements and schedules of Gottschalks Inc. and
subsidiaries for the year ended February 1, 1992, included in the
Annual Report (Form 10-K) for the year ended January 29, 1994.
/S/ ERNST & YOUNG
Fresno, California
July 25, 1994
