SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
POST-EFFECTIVE AMENDMENT NO. 1 TO THE
FORM S-8 REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
___________________
Gottschalks Inc.
(Exact name of registrant as specified in its charter)
___________________
Delaware 77-0159791
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
7 River Park Place East, Fresno, California 93720
(559) 434-4800
(Address and telephone number of principal executive offices)
___________________
The Amended and Restated Gottschalks Inc. 1998 Employee Stock Purchase Plan
(Full title of the plan)
___________________
Warren L. Williams, Esq.
General Counsel
Gottschalks Inc.
7 River Park Place East, Fresno, California 93720
(Name and address of agent for service)
___________________
Telephone number, including area code, of agent for service: (559) 434-4800
___________________
Copy to:
D. Stephen Antion, Esq.
O'Melveny & Myers LLP
1999 Avenue of the Stars, 7th Floor, Los Angeles, California 90067
___________________
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum maximum
Title of Amount Offering aggregate Amount of
Securities to be Price offering registration
to be registered per unit price fee
registered
Common Stock, 500,000(1) $8.71875(2) $4,359,375(2) $1,286(2),(3)
$0.01 par shares
value
(1) This Registration Statement covers, in addition
to the number of shares of Common Stock stated above, options and
other rights to purchase or acquire the shares of Common Stock
covered by the Prospectus and, pursuant to Rule 416(c) under the
Securities Act of 1933, as amended (the "Securities Act"), an
additional indeterminate number of shares, options and rights
which by reason of certain events specified in The Amended and
Restated Gottschalks Inc. 1998 Employee Stock Purchase Plan (the
"Plan") may become subject to the Plan.
(2) Pursuant to Securities Act Rule 457(h), the
maximum offering price, per share and in the aggregate, and the
registration fee were calculated based upon the average of the high
and low prices of the Common Stock on August 10, 1998, as reported
on the New York Stock Exchange and published in the Western Edition
of The Wall Street Journal.
(3) The total registration fee of $1,286 was
previously paid upon the initial filing of this Registration
Statement on August 14, 1998.
The Exhibit Index for this Registration Statement is at page 9.
<PAGE>
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part
I of Form S-8 (plan information and registrant information) will
be sent or given to employees as specified by Securities Act
Rule 428(b)(1). Such documents need not be filed with the
Securities and Exchange Commission (the "Commission") either as
part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Securities Act Rule 424.
These documents, which include the statement of availability
required by Item 2 of Form S-8, and the documents incorporated
by reference in this Registration Statement pursuant to Item 3
of Form S-8 (Part II hereof), taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the
Securities Act.
<PAGE>
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents of Gottschalks Inc. (the "Company")
filed with the Commission are incorporated herein by reference:
(a) Annual Report on Form 10-K for the Company's fiscal
year ended January 30, 1999; and
(b) The description of the Company's Common Stock
contained in the Company's registration statement
on Form 8-A, filed with the Commission on November 14, 1986
(and past and future amendments thereto) under Section 12
of the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of 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 herein or in any other
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 4. Description of Securities
The Company's Common Stock, par value $0.01 (the "Common
Stock"), is registered pursuant to Section 12 of the Exchange
Act, and, therefore, the description of securities is omitted.
Item 5. Interests of Named Experts and Counsel
The validity of the original issuance of the Common Stock
registered hereby is passed on for the Company by Warren L.
Williams, Esq. Mr. Williams is the General Counsel of the
Company, is compensated by the Company as an employee, is the
owner of shares of Common Stock and the holder of options to
acquire additional shares of Common Stock, and is eligible to
participate in the plan.
<PAGE>
Item 6. Indemnification of Directors and Officers
Delaware law provides for the indemnification of officers
and directors in terms sufficiently broad to include
indemnification under certain circumstances for liabilities
(including reimbursement for expenses incurred) arising under
the Securities Act. Pursuant to Section 145 of the Delaware
General Corporation Law (the "DGCL"), a corporation may
indemnify an officer or director if that person acted in good
faith and in a manner reasonably believed to be in or not
opposed to the best interests of the corporation, and, with
respect to criminal actions or proceedings, had no reason to
believe the conduct was unlawful.
The Company's Certificate of Incorporation limits
directors' liability for monetary damages to the Company and its
stockholders for breaches of fiduciary duty to the fullest
extent permitted by the DGCL.
The Company's Bylaws provide that each director or officer
of the Company who was or is a party or is threatened to be made
a party to or is involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or
she, or a person of whom he or she is the legal representative,
is or was a director or officer of the Company or is or was
serving at the request of the Company as a director, officer,
employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such
proceeding is alleged action in an official capacity or in
another capacity while serving as director, officer, employee or
agent, shall be indemnified and held harmless by the Company to
the fullest extent permitted by the laws of Delaware, as the
same exist or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits
the Company to provide broader indemnification rights than said
law permitted the Company to provide prior to such amendment),
against all costs, charges, expenses, liabilities and losses
(including attorneys' fees, judgments, fines, ERISA excise taxes
or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection
therewith, and such indemnification shall continue as to a
person who has ceased to be a director or officer and shall
inure to the benefit of his or her heirs, executors and
administrators; provided, however, that the Company shall
indemnify any such person seeking indemnification in connection
with a proceeding (or part thereof) initiated by such person
only if such proceeding (or part thereof) was initiated or
authorized by one or more members of the Company's Board of
Directors. The right to indemnification shall be a contract
right and shall include the right to be paid by the Company the
expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that if the DGCL so
requires, the payment of such expenses incurred by a director or
officer in his or her capacity as a director or officer (and not
in any other capacity in which service was or is rendered by
such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of
the final disposition of a proceeding shall be made only upon
delivery to the Company of an undertaking, by or on behalf of
such director or officer, to repay all amounts so advanced if it
will ultimately be determined that such director or officer is
not entitled to be indemnified.
Item 7. Exemption from Registration Claimed
Not applicable.
<PAGE>
Item 8. Exhibits
See the attached Exhibit Index at page 9.
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;
(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; 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 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 Exchange Act
that are incorporated by reference in the Registration
Statement;
(2) That, for the purpose of determining any liability
under the Securities Act, 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; and
(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,
each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) 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 may be permitted to directors,
executive officers and controlling persons of the registrant
pursuant to the provisions described in Item 6 above, or
otherwise, the registrant has been advised that in the opinion
of the Commission such indemnification is against public policy
as expressed in the Securities 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 Securities Act and
will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 the 27th day of May,
1999.
By: /s/ Joseph W. Levy
-------------------------------
Joseph W. Levy
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and
appoints Joseph W. Levy and James R. Famalette, or either of
them individually, his or her true and lawful attorney-in-fact
and agent, with full powers of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and
to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Commission, granting unto said
attorneys-in-fact and agents, full power and authority to do and
perform each and every act and thing requisite and necessary to
be done in and about the premises, as fully to all intents and
purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and
agents, or either of them individually, or his substitute or
substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
Signature Title Date
/s/ Joseph W. Levy
----------------------- Chairman and Chief May 27, 1999
Joseph W. Levy Executive Officer
(Principal Executive
Officer)
/s/ James R. Famalette
----------------------- President, Chief May 27, 1999
James R. Famalette Operating Officer and
Director
<PAGE>
/s/ Michael S. Geele
----------------------- Senior Vice President May 27, 1999
Michael S. Geele and Chief Financial
Officer (Principal
Financial and
Accounting Officer)
/s/ Bret W. Levy
----------------------- Vice President, May 26, 1999
Bret W. Levy Treasurer and
Director
----------------------- Director May ___, 1999
Max Gutmann
----------------------- Director May ___, 1999
Sharon Levy
/s/ Joseph J. Penbera
----------------------- Director May 27, 1999
Joseph J. Penbera
/s/ Frederick R. Ruiz
----------------------- Director May 27, 1999
Frederick R. Ruiz
----------------------- Director May ___, 1999
William Smith
/s/ O. James Woodward III
----------------------- Director May 27, 1999
O. James Woodward III
----------------------- Director May ___, 1999
Isidoro Alvarez Alvarez
----------------------- Director May ___, 1999
Jorge Pont Sanchez
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description of Exhibit
4. The Amended and Restated Gottschalks Inc. 1998 Employee Stock
Purchase Plan.
5. Opinion of Warren L. Williams, Esq. (opinion re
legality).*
23.1 Consent of Independent Auditors.
23.2 Consent of Warren L. Williams, Esq. (included in
Exhibit 5).*
24. Power of Attorney (included in this Registration
Statement under "Signatures").
_______________________________
* This exhibit was filed as an exhibit to the initial filing
of this Registration Statement No. 333-61473, filed by the
Company with the Commission on August 14, 1998, and is
incorporated herein by this reference.
THE AMENDED AND RESTATED GOTTSCHALKS INC.
1998 EMPLOYEE STOCK PURCHASE PLAN
The following constitute the provisions of the 1998
Employee Stock Purchase Plan of Gottschalks Inc.
1. Purpose. The purpose of the Plan is to provide
employees of the Company and its Designated Subsidiaries with an
opportunity to purchase Common Stock of the Company. It is the
intention of the Company to have the Plan qualify as an "Employee
Stock Purchase Plan" under Section 423 of the Internal Revenue
Code of 1986, as amended. The provisions of the Plan shall,
accordingly, be construed so as to extend and limit participation
in a manner consistent with the requirements of that section of
the Code.
2. Definitions.
(a) "Board" shall mean the Board of Directors of the
Company.
(b) "Code" shall mean the Internal Revenue Code of
1986, as amended.
(c) "Common Stock" shall mean the Common Stock of the
Company.
(d) "Company" shall mean Gottschalks Inc., a Delaware
corporation.
(e) "Compensation" shall mean all regular straight
time gross earnings, payments for overtime, shift premium,
incentive compensation, incentive payments, bonuses, commissions
and other cash compensation.
(f) "Continuous Status as an Employee" shall mean the
absence of any interruption or termination of service as an
Employee. Continuous Status as an Employee shall not be
considered interrupted in the case of a leave of absence agreed
to in writing by the Company, provided that such leave is for a
period of not more than 90 days or reemployment upon the
expiration of such leave is guaranteed by contract or statute.
(g) "Contributions" shall mean all amounts credited to
the account of a participant pursuant to the Plan.
(h) "Designated Subsidiaries" shall mean the
Subsidiaries which have been designated by the Board from time to
time in its sole discretion as eligible to participate in the
Plan (including any Subsidiaries which have been so designated
after the date the Plan is approved by stockholders).
(i) "Employee" shall mean any person, including an
officer, who is customarily employed for at least twenty (20)
hours per week and more than five (5) months in a calendar year
by the Company or one of its Designated Subsidiaries.
(j) "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended.
(k) "Exercise Date" shall mean the last day of each
Offering Period of the Plan.
(l) "Offering Date" shall mean the first business day
of each Offering Period of the Plan.
(m) "Offering Period" shall mean a period of six (6)
months, subject to and except as otherwise provided in Section 4.
(n) "Plan" shall mean this Employee Stock Purchase
Plan.
(o) "Subsidiary" shall mean any corporation, domestic
or foreign, in an unbroken line of corporations (beginning with
the Company) in which each corporation (other than the last
corporation) has stock possessing 50% or more of the total
combined voting power of all classes of stock in one or more of
the other corporations in the chain, whether or not such
corporation now exists or is hereafter organized or acquired by
the Company or a Subsidiary.
3. Eligibility.
(a) Any person who has been employed as an Employee
for six (6) months as of the Offering Date of a given Offering
Period shall be eligible to participate during such Offering
Period under the Plan, subject to the requirements of Section
5(a) and the limitations imposed by Section 423(b) of the Code.
(b) Any provisions of the Plan to the contrary
notwithstanding, no Employee shall be granted an option under the
Plan (i) if, immediately after the grant, such Employee (after
applying the attribution rules contained in Section 424(d) of the
Code) would own stock and/or hold outstanding options to purchase
stock possessing five percent (5%) or more of the total combined
voting power or value of all classes of stock of the Company or
of any Subsidiary, or (ii) if such option would permit his or her
rights to purchase stock under all employee stock purchase plans
(described in Section 423 of the Code) of the Company and its
Subsidiaries to accrue at a rate which exceeds Twenty Five
Thousand Dollars ($25,000) of fair market value of such stock
(determined at the time such option is granted) for each calendar
year in which such option is outstanding at any time. For this
purpose, a right to purchase stock occurs when it first becomes
exercisable during the calendar year.
4. Offering Periods. The first Offering Period shall
commence on July 1, 1999 (or such other date as the Board of
Directors shall determine) and terminate on December 31, 1999.
All subsequent new Offering Periods shall commence on or about
January 1 and July 1 of each year (or at such other time or times
as may be determined by the Board of Directors) and shall
terminate on the next succeeding June 30 and December 31,
respectively. The Plan shall continue until terminated in
accordance with Sections 19 or 23 hereof. The Board of Directors
of the Company shall have the power to change the duration and/or
the frequency of Offering Periods with respect to future
offerings without stockholder approval if such change is
announced at least ten (10) days prior to the scheduled beginning
of the first Offering Period to be affected.
5. Participation.
(a) An eligible Employee may become a participant in
the Plan by completing a subscription agreement on the form
provided by the Company and filing it with the Company's payroll
office prior to the applicable Offering Date, unless a different
time for filing the subscription agreement is set by the Board
for all eligible Employees with respect to a given Offering
Period. The subscription agreement shall set forth the
percentage of the participant's Compensation (which shall be not
less than 1% and not more than 10%) to be applied as
Contributions pursuant to the Plan.
(b) Payroll deductions shall commence on the first
payroll following the Offering Date and shall end on the last
payroll paid on or prior to the Exercise Date of the Offering
Period to which the subscription agreement is applicable, unless
sooner terminated by the participant as provided in Section 10.
6. Method of Payment of Contributions.
(a) The participant shall elect to have payroll
deductions made on each payday during the Offering Period in an
amount not less than one percent (1%) and not more than ten
percent (10%) of such participant's Compensation on each such
payday. The Company will maintain on its books or cause to be
maintained by a recordkeeper an account in the name of such
participant. All payroll deductions made by a participant shall
be credited to his or her account under the Plan. A participant
may not make any additional payments into such account.
(b) A participant may discontinue his or her
participation in the Plan as provided in Section 10.
(c) Notwithstanding the foregoing, to the extent
necessary to comply with Section 423(b)(8) of the Code and
Section 3(b) herein, a participant's payroll deductions may be
decreased to 0% at such time during any Offering Period which is
scheduled to end during the current calendar year that the
aggregate of all payroll deductions accumulated with respect to
such Offering Period and any other Offering Period ending within
the same calendar year equal $21,250. Payroll deductions shall
re-commence at the rate provided in such participant's
subscription agreement at the beginning of the first Offering
Period which is scheduled to end in the following calendar year,
unless terminated by the participant as provided in Section 10.
7. Grant of Option.
(a) On the Offering Date of each Offering Period, each
eligible Employee participating in such Offering Period shall be
granted an option to purchase on the Exercise Date a number of
shares of the Company's Common Stock determined by dividing such
Employee's Contributions accumulated prior to such Exercise Date
and retained in the participant's account as of the Exercise Date
by the lower of (i) eighty-five percent (85%) of the fair market
value of a share of the Company's Common Stock on the Offering
Date, or (ii) eighty-five percent (85%) of the fair market value
of a share of the Company's Common Stock on the Exercise Date;
provided, however, that the maximum number of shares an Employee
may purchase during each Offering Period shall be determined at
the Offering Date by dividing $12,500 by the fair market value of
a share of the Company's Common Stock on the Offering Date, and
provided further that such purchase shall be subject to the
limitations set forth in Sections 3(b) and 12. The fair market
value of a share of the Company's Common Stock shall be
determined as provided in Section 7(b).
(b) The option price per share of the shares offered
in a given Offering Period shall be the lower of: (i) 85% of the
fair market value of a share of the Common Stock of the Company
on the Offering Date; or (ii) 85% of the fair market value of a
share of the Common Stock of the Company on the Exercise Date.
The fair market value of the Company's Common Stock on a given
date shall be the closing price on The New York Stock Exchange on
such date (or, in the event that the Common Stock is not traded
on such date, on the immediately preceding trading date), as
reported in The Wall Street Journal or, in the event the Common
Stock is not listed on The New York Stock Exchange, the fair
market value shall be the closing price of the Common Stock for
such date (or, in the event that the Common Stock is not traded
on such date, on the immediately preceding trading date), as
reported on such other national securities exchange on which the
Common Stock is traded or, if such price is not reported, the
mean of the bid and asked prices per share of the Common Stock as
reported by such national securities exchange on which the Common
Stock is traded or, if such prices are not so reported, as
determined by the Board in its discretion.
8. Exercise of Option; Holding Period. Unless a
participant withdraws from the Plan as provided in paragraph 10,
his or her option for the purchase of shares will be exercised
automatically on the Exercise Date of the Offering Period,
without any further action on the optionee's part, and the
maximum number of shares (including full and partial shares)
subject to option will be purchased at the applicable option
price with the accumulated Contributions in his or her account.
The shares purchased upon exercise of an option hereunder shall
be deemed to be transferred to the participant on the Exercise
Date. Notwithstanding the prior sentence, except as provided in
Section 18, all shares purchased upon exercise of an option
hereunder must be held by the participant for a minimum of twelve
(12) months after the applicable Exercise Date (the "Holding
Period") before such shares may be assigned, transferred, pledged
or otherwise disposed of in any way (other than by will or the
laws of descent and distribution) by the participant or converted
into certificates representing the shares regardless of whether
or not the participant ceases to be an eligible participant
(whether due to change in status, termination or otherwise).
During his or her lifetime, a participant's option to purchase
shares hereunder is exercisable only by him or her.
9. Delivery. The shares purchased upon exercise of an
option hereunder will be held for the participant in a brokerage
account in the participant's name with a broker designated by the
Company. Any participant may request from such broker that the
broker deliver (at any time after the expiration of the
applicable Holding Period) to the participant a certificate or
certificates representing all or any portion of the shares held
by the participant. The broker may charge the participant a
reasonable fee for the issuance of such certificates.
10. Withdrawal; Termination of Employment; Reduction in
Service.
(a) A participant may withdraw all but not less than
all the Contributions credited to his or her account under the
Plan at any time prior to thirty (30) days prior to the Exercise
Date of the Offering Period by giving written notice to the
Company. All of the participant's Contributions credited to his
or her account will be paid to him or her within fifteen (15)
days after receipt of his or her notice of withdrawal and his or
her option for the current period will be automatically
terminated. No further Contributions for the purchase of shares
will be made during the Offering Period.
(b) Upon termination of the participant's Continuous
Status as an Employee prior to the Exercise Date of the Offering
Period for any reason, including retirement or death, the
Contributions credited to his or her account will be returned to
him or her or, in the case of his or her death, to the person or
persons entitled thereto under Section 14, and his or her option
will be automatically terminated.
(c) In the event an Employee fails to remain in
Continuous Status as an Employee of the Company for at least
twenty (20) hours per week during the Offering Period in which
the employee is a participant, he or she will be deemed to have
elected to withdraw from the Plan and the Contributions credited
to his or her account will be returned to him or her and his or
her option terminated.
(d) A participant's withdrawal from an offering will
not have any effect upon his or her eligibility to participate in
a succeeding offering or in any similar plan which may hereafter
be adopted by the Company.
11. Interest. No interest shall accrue on the
Contributions of a participant in the Plan.
12. Stock.
(a) The maximum number of shares of the Company's
Common Stock which shall be made available for sale under the
Plan shall be 500,000 shares, subject to adjustment upon changes
in capitalization of the Company as provided in Section 18. If
the total number of shares which would otherwise be subject to
options granted pursuant to Section 7(a) on the Offering Date of
an Offering Period exceeds the number of shares then available
under the Plan (after deduction of all shares for which options
have been exercised or are then outstanding), the Company shall
make a pro rata allocation of the shares remaining available for
option grant in as uniform a manner as shall be practicable and
as it shall determine to be equitable. In such event, the
Company shall give written notice of such reduction of the number
of shares subject to the option to each Employee affected thereby
and shall similarly reduce the rate of Contributions, if
necessary.
(b) The participant will have no interest or voting
right in shares covered by his or her option until such option
has been exercised.
(c) Shares to be delivered to a participant under the
Plan will be registered in the name of the participant or, if
requested by the participant, in the name of the participant and
his or her spouse.
13. Administration. The Board, or a committee named by the
Board, shall supervise and administer the Plan and shall have
full power and discretion to adopt, amend and rescind any rules
deemed desirable and appropriate for the administration of the
Plan and not inconsistent with the Plan, to construe and
interpret the Plan, and to make all other determinations
necessary or advisable for the administration of the Plan. The
composition of the committee shall be in accordance with the
requirements to obtain or retain any available exemption from the
operation of Section 16(b) of the Exchange Act.
14. Distribution of Account Upon Death.
In the event of a participant's death prior to the
Exercise Date of an Offering Period, any cash withheld
during the Offering Period will be refunded in full and added
to the paricipant's final paycheck.
15. Transferability. Neither Contributions credited to a
participant's account nor any options or rights with regard to
the exercise of options or to receive shares under the Plan may
be assigned, transferred, pledged or otherwise disposed of in any
way (other than by will or the laws of descent and distribution)
by the participant and, except as provided in Section 18, may only
be so disposed after the Holding Period. Any such attempt at
assignment, transfer, pledge or other disposition shall be
without effect, except that the Company may treat such act as
an election to withdraw funds in accordance with Section 10.
16. Use of Funds. All Contributions received or held by
the Company under the Plan may be used by the Company for any
corporate purpose, and the Company shall not be obligated to
segregate such Contributions.
17. Reports. Individual bookkeeping accounts will be
maintained for each participant in the Plan. Statements of
account will be given to participating Employees promptly
following the Exercise Date, which statements will set forth the
amount of Contributions, the per share purchase price and the
number of shares purchased.
18. Adjustments Upon Changes in Capitalization.
(a) Adjustment. Subject to any required action by the
stockholders of the Company, the number of shares of Common Stock
covered by each option under the Plan which has not yet been
exercised and the number of shares of Common Stock which have
been authorized for issuance under the Plan but have not yet been
placed under option (collectively, the "Reserves"), as well as
the price per share of Common Stock covered by each option under
the Plan which has not yet been exercised, shall be
proportionately adjusted for any increase or decrease in the
number of issued shares of Common Stock resulting from a stock
split, reverse stock split, stock dividend, combination or
reclassification of the Common Stock, or any other increase or
decrease in the number of shares of Common Stock effected without
receipt of consideration by the Company; provided, however, that
conversion of any convertible securities of the Company shall not
be deemed to have been "effected without receipt of
consideration." Such adjustment shall be made by the Board, whose
determination in that respect shall be final, binding and
conclusive. Except as expressly provided herein, no issue by the
Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and
no adjustment by reason thereof shall be made with respect to,
the number or price of shares of Common Stock subject to an
option.
(b) Corporate Transactions. In the event of the
proposed dissolution or liquidation of the Company, the Offering
Period will terminate immediately prior to the consummation of
such proposed action, unless otherwise provided by the Board. In
the event of a proposed sale of all or substantially all of the
assets of the Company, or the merger of the Company with or into
another corporation (a "Corporate Transaction"), each option
under the Plan shall be assumed or an equivalent option shall be
substituted by such successor corporation or a parent or
subsidiary of such successor corporation, unless the Board
determines, in the exercise of its sole discretion and in lieu of
such assumption or substitution, to shorten the Offering Period
then in progress by setting a new Exercise Date (the "New
Exercise Date"). If the Board shortens the Offering Period then
in progress in lieu of assumption or substitution in the event of
a Corporate Transaction, the Board shall notify each participant
in writing, at least ten (10) days prior to the New Exercise
Date, that the Exercise Date for his or her option has been
changed to the New Exercise Date and that his or her option will
be exercised automatically on the New Exercise Date, unless prior
to such date he or she has withdrawn from the Offering Period as
provided in Section 10; provided, however, that any participant
that has already provided notice to withdraw pursuant to
Section 10 shall be withdrawn from the Plan prior to the New
Exercise Date even if, as a result of the timing of the New
Exercise Date, such participant would not have provided the
Company with the full thirty (30) day notice prior to the New
Exercise Date. For purposes of this paragraph, an option granted
under the Plan shall be deemed to be assumed if, following the
Corporate Transaction, the option confers the right to purchase,
for each share of option stock subject to the option immediately
prior to the Corporate Transaction, the consideration (whether
stock, cash or other securities or property) received in the
Corporate Transaction by holders of Common Stock for each share
of Common Stock held on the effective date of the Corporate
Transaction (and if such holders were offered a choice of
consideration, the type of consideration chosen by the holders of
a majority of the outstanding shares of Common Stock); provided,
however, that if such consideration received in the Corporate
Transaction was not solely common stock of the successor
corporation or its parent (as defined in Section 424(e) of the
Code), the Board may, with the consent of the successor
corporation and the participant, provide for the consideration to
be received upon exercise of the option to be solely common stock
of the successor corporation or its parent equal in fair market
value of the per share consideration received by holders of
Common Stock in the Corporate Transaction.
In the event of a proposed Corporate Transaction, the
Board may, if it so determines in the exercise of its sole
discretion, waive the Holding Period for all, but not less than
all, of the shares to be issued under the Plan on or prior to the
date of the Corporate Transaction and all outstanding shares
issued pursuant to the Plan.
The Board may, if it so determines in the exercise of
its sole discretion, also make provision for adjusting the
Reserves, as well as the price per share of Common Stock covered
by each outstanding option, in the event that the Company effects
one or more reorganizations, recapitalizations, rights offerings
or other increases or reductions of shares of its outstanding
Common Stock, and in the event of the Company being consolidated
with or merged into any other corporation in connection
therewith.
19. Amendment or Termination.
(a) The Board of Directors of the Company may at any
time terminate or amend the Plan. Except as provided in Section
18, no such termination shall affect options previously granted,
nor shall an amendment make any change in an outstanding option
which adversely affects the rights of the optionee. In addition,
to the extent necessary to comply with Section 423 of the Code
(or any successor rule or provision or any applicable law or
regulation), the Company shall obtain stockholder approval in
such a manner and to such a degree as so required.
(b) Without stockholder consent and without regard to
whether any participant rights may be considered to have been
adversely affected, the Board (or its committee) shall be
entitled to change the Offering Periods, limit the frequency
and/or number of changes in the amount withheld during an
Offering Period, establish the exchange ratio applicable to
amounts withheld in a currency other than U.S. dollars, permit
payroll withholding in excess of the amount designated by a
participant in order to adjust for delays or mistakes in the
Company's processing of properly completed withholding elections,
establish reasonable waiting and adjustment periods and/or
accounting and crediting procedures to ensure that amounts
applied toward the purchase of Common Stock for each participant
properly correspond with amounts withheld from the participant's
Compensation, and establish such other limitations or procedures
as the Board (or its committee) determines in its sole discretion
advisable which are consistent with the Plan. In addition, the
Board (or its committee) shall have the right to designate from
time to time the Subsidiaries where employees may be eligible to
participate in the Plan and such designations shall not
constitute an amendment to the Plan requiring stockholder
approval in accordance with Treasury Regulations Section
1.423-2(c)(4).
20. Stockholder Approval. Stockholder approval of the Plan
shall be obtained in the manner and to the extent required under
applicable federal and state law.
21. Notices. All notices or other communications by a
participant to the Company under or in connection with the Plan
shall be deemed to have been duly given when received in the form
specified by the Company at the location, or by the person,
designated by the Company for that purpose.
22. Conditions Upon Issuance of Shares. Shares shall not
be issued with respect to an option unless the exercise of such
option and the issuance and delivery of such shares pursuant
thereto shall comply with all applicable provisions of law,
domestic or foreign, including, without limitation, the
Securities Act of 1933, as amended, the Exchange Act, any
applicable state securities laws, the rules and regulations
promulgated thereunder, and the requirements of any stock
exchange upon which the shares may then be listed.
As a condition to the exercise of an option, the
Company may require the person exercising such option to
represent and warrant at the time of any such exercise that the
shares are being purchased only for investment and without any
present intention to sell or distribute such shares if, in the
opinion of counsel for the Company, such a representation is
required by any of the aforementioned applicable provisions of
law.
23. Term of Plan; Effective Date. The Plan shall become
effective upon its approval by the stockholders of the Company.
It shall continue in effect for a term of ten (10) years unless
sooner terminated under Section 19.
24. Plan Construction. It is the intent of the Company
that transactions in and affecting options in the case of
Participants who are or may be subject to Section 16 of the
Exchange Act satisfy any then applicable requirements of Rule 16b-
3 so that such persons (unless they otherwise agree) will be
entitled to the exemptive relief of Rule 16b-3 in respect of
those transactions and will not be subjected to avoidable
liability thereunder. Accordingly, this Plan shall be deemed to
contain, and such options shall contain, and the shares issued
upon exercise thereof shall be subject to, such additional
conditions and restrictions as may be required by Rule 16b-3 to
qualify for the maximum exemption from Section 16 of the Exchange
Act with respect to Plan transactions. If any provision of this
Plan or of any option would otherwise frustrate or conflict with
the intent expressed above, that provision to the extent possible
shall be interpreted as to avoid such conflict. If the conflict
remains irreconcilable, the Board or the committee may disregard
the provision if it concludes that to do so furthers the interest
of the Company and is consistent with the purposes of this Plan
as to such persons in the circumstances.
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Post-Effective
Amendment No. 1 to Registration Statement No. 333-61473 of Gottschalks
Inc. on Form S-8 and related Prospectus pertaining to the Amended
and Restated Gottschalks Inc. 1998 Employee Stock Purchase Plan of
our report dated February 23, 1999 (March 1, 1999 as to Note 3),
appearing in the Annual Report on Form 10-K of Gottschallks Inc.
for the year ended January 30, 1999.
/s/ DELOITTE & TOUCHE LLP
Fresno, California
May 25, 1999
