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 DIRECTOR NONQUALIFIED 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: 50,000 shares
Proposed maximum offering price per share: $9.6875*
Proposed maximum aggregate offering price: $484,375*
Amount of registration fee: $167
__________
* 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 , 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 Director Nonqualified 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 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 Director
Nonqualified 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 DIRECTOR NONQUALIFIED STOCK OPTION PLAN
FOR NON-EMPLOYEE DIRECTORS
1. Purpose. This Gottschalks Inc. 1994 Director
Nonqualified Stock Option Plan for Non-Employee Directors (the
"Plan") is intended to provide to each of the directors of
Gottschalks Inc. (the "Company") who is not also either an
employee or an officer of the Company added incentive to continue
in the service of the Company and a more direct interest in the
future success of the operations of the Company, by granting to
such persons options to purchase shares of the Company's common
stock (as defined below), subject to the terms and conditions
described below. The options granted under this Plan shall be
options that are not qualified as "incentive stock options"
within the meaning of Section 422(b) of the Internal Revenue Code
of 1986, as amended, (the "Code").
2. Administration. The Plan shall be administered by the
Compensation Committee of the Board of Directors of the Company
(the "Committee"). However, the Committee shall have no
authority, discretion or power to select the non-employee
directors who will receive options, determine the time at which
the non-employee director will receive options, determine the
exercise price of such options or set the number of shares to be
covered by each option granted to a non-employee director. The
Committee shall have no authority, discretion or power to set the
period within which the options so granted may be exercised, or
to alter any other terms or conditions specified herein, except
in the sense of administering the Plan subject to the express
provisions of the Plan and except in accordance with Section 7
hereof.
Subject to the foregoing limitations, the Committee shall
have authority and power to adopt such rules and regulations and
to take such action as it shall consider necessary or advisable
for the administration of the Plan, and to construe, interpret
and administer the Plan. The decisions of the Committee relating
to the Plan shall be final and binding upon the Company, the
non-employee directors, as such term is hereinafter defined, and
all other persons. No member of the Committee or the Board of
Directors of the Company (the "Board") shall incur any liability
by reason of any action or determination made in good faith with
respect to the Plan or any stock option agreement entered into
pursuant to the Plan. 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 Board.
3. Eligibility. For purposes of this Plan and as used
herein, "non-employee director" shall mean an individual who (a)
is now, or hereafter becomes, a member of the Board by virtue of
an election by the stockholders of the Company, (b) is neither an
employee nor an officer of the Company and (c) has not elected to
decline to participate in the Plan pursuant to the next
succeeding sentence. Notwithstanding any other provision of this
Plan, the term non-employee director shall specifically exclude
Mrs. Sharon Levy and Mrs. Karen L. Blum, and Mrs. Levy and
Mrs. Blum are not eligible to participate in this Plan. A
director otherwise eligible to participate in the Plan may make
an irrevocable, one-time election, by written notice to the
Company within 30 days after his initial election to the Board
or, in the case of the directors in office on the Effective Date
(as defined in Section 11), within 30 days after the Effective
Date, to decline to participate in the Plan.
For purposes of this Plan and as used herein, "employee"
shall mean an individual whose wages are subject to the
withholding of federal income tax by the Company under Section
3401 of the Code, and "officer" shall mean an individual elected
or appointed by the Board or chosen in such other manner as may
be prescribed in the Bylaws of the Company to serve as such.
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 fifty thousand
(50,000) shares of Common Stock. The limitations established by
the preceding sentences shall be subject to adjustment as
provided in Section 5(h) of this Plan.
5. Terms and Conditions of Options. Each non-employee
director shall be granted options to purchase Common Stock under
the Plan on the terms and conditions herein described. Each
option granted under the Plan to a non-employee director shall be
evidenced by a written stock option agreement, which agreement
shall be entered into by the Company and the non-employee
director 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) Non-Employee Director's Agreement. As consideration
for the granting of an option under the Plan, each
non-employee director shall agree to service as a director
of the Company, at the pleasure of the Company's
stockholders.
(b) Grant Date and Number of Shares. Options shall be
granted initially as of thirty (30) days following the
Effective Date to each existing non-employee director
serving the Company as a director on such date. Thereafter,
options shall be granted automatically to new non-employee
directors serving the Company as directors on the date such
new non-employee directors begin serving the Company as
directors, subject to the limitations described in this
Section 5(b) below.
Each non-employee director serving the Company as a
director on the Effective Date shall be granted, as of
thirty days following the Effective Date, an option to
purchase 5,000 shares of Common Stock. On the date a new
non-employee director begins serving the Company as a
director, such non-employee director shall be granted an
option to purchase 5,000 shares of Common Stock.
(c) Option Price. The option shall state the option
price, which shall be 100% 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. In addition to the foregoing,
promptly after demand by the Company, the exercising
non-employee director shall pay to the Company an amount
equal to applicable withholding taxes, if any, due in
connection with such exercise.
(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. 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, it
shall expire and be void with respect to any shares subject
thereto which have not been theretofore purchased.
An option granted to a non-employee director pursuant to
this Plan shall first become exercisable in part upon the
first anniversary of the grant date of the option; as of and
following such first anniversary, the non-employee director
may purchase by exercise of such option an aggregate of up
to twenty-five percent (25%) of the total number of shares
of Common Stock subject to such option; as of and following
the second anniversary of such grant date, the non-employee
director may purchase by exercise of such option up to an
aggregate of fifty percent (50%) of the total number of such
shares of Common Stock; as of and following the third
anniversary of such grant date, the non-employee director
may purchase by exercise of such option up to an aggregate
of seventy-five percent (75%) of the total number of such
shares of Common Stock; in each case calculated to the
nearest full share and, in each case, to the extent such
number of shares of Common Stock subject to such option have
not been previously purchased. At any time on or after the
fourth anniversary of the grant date of such option, until
the option expires, such non-employee director may purchase
all or any part of the shares of Common Stock subject to
such option which have not theretofore been purchased.
(f) Termination of Directorship Except for Death or
Disability. In the event that the non-employee director
ceases to be a Company director for any reason other than
the non-employee director'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
the non-employee director ceases to be a Company director,
it may be exercised by the non-employee director within the
ninety-day period following the date the non-employee
director ceases to be a Company director, 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.
(g) Death or Disability of Non-Employee Director and
Transfer of Option. If the non-employee director ceases to
be a Company director due to the death or disability of the
non-employee director, 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 day of death or
disability, it may be exercised at any time within one year
after the non-employee director'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 non-employee director (or his or her
guardian or legal representative) if he has become disabled
while a director of the Company, or if he shall die while a
director of the Company, by the executors or administrators
of the non-employee director's estate or by any person or
persons who shall have acquired the option directly from the
non-employee director 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 non-
employee director, so that immediately after such event each
non-employee director 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 non-
employee director 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 to each non-employee director 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 a non-employee director shall cease to be a
director of 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
non-employee director ceases to be a director of the
Company.
(i) Rights as a Stockholder. A non-employee director
(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 non-employee
director, alter or impair any rights or obligations under
any option theretofore granted under the Plan.
(k) Investment Purpose. Each non-employee director
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 non-employee
director 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 non-employee director 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 non-employee director 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.
(m) Assignability. No option shall be transferable by
non-employee director other than by will or the laws of
descent and distribution and shall be exercisable during the
lifetime of the non-employee director only by the non-
employee director or, if the non-employee director is
legally incompetent, by the non-employee director'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 Common Stock subject to the Plan
or the maximum number of shares upon which options may be granted
to any non-employee director in any calendar year (other than as
provided in Section 5(h)), (ii) shall change the designation of
the class of persons 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
non-employee director under an option, except with the consent of
such non-employee director. The Board may, with respect to any
shares at the time not subject to options, suspend, discontinue
or terminate the Plan. Notwithstanding any other Plan provision,
Sections 5(b) and 5(c) of this Plan may not be amended more than
once every six months except to comport with changes in the Code,
the Employee Retirement Income Security Act ("ERISA") or rules
thereunder.
8. No Obligation to Exercise Option. The granting of an
option shall impose no obligation upon the non-employee director
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
on the date on which it is 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").
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 Director Nonqualified
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 50,000 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 Director Nonqualified 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 Director Nonqualified
Stock Option Plan of Gottschalks Inc. and subsidiaries for the
registration of 50,000 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
