As filed with the Securities and Exchange Commission on July 15, 2005
Registration No. _________________
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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GOTTSCHALKS INC.
(Exact Name of Registrant as Specified in Its Charter)
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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
(Address, Including Zip Code, of Principal Executive Offices)
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GOTTSCHALKS INC.
2005 STOCK OPTION PLAN
(Full Title of the Plan)
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J. Gregory Ambro
7 River Park Place East
Fresno, California 93720
(559) 434-4800
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
COPY TO:
Richard Boehmer, Esq.
O'Melveny & Myers LLP
400 South Hope Street
Los Angeles, CA 90071-2899
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CALCULATION OF REGISTRATION FEE
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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
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Common Stock
$0.01 par value 1,500,000(1) $10.845(2) $16,267,500(2) $1,914.69(2)
per share shares
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(1) This Registration Statement covers, in addition to the number of
shares of Gottschalks Inc., a Delaware corporation (the "Company" or
the "Registrant"), common stock, par value $0.01 per share (the
"Common Stock"), stated above, options and other rights to purchase or
acquire the shares of Common Stock covered by this Registration
Statement 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 that may be offered or issued
pursuant to the Gottschalks Inc. 2005 Stock Option Plan (the "Plan")
as a result of one or more adjustments under the Plan to prevent
dilution resulting from one or more stock splits, stock dividends or
similar transactions.
(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 July 8, 2005, as quoted on the New York Stock
Exchange. The Exhibit Index for this Registration Statement is at
page 8.
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PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to participants as specified by Securities Act
Rule 428(b)(1).
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PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of the Company filed with the Securities and
Exchange Commission (the "Commission") are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for its fiscal year ended
January 29, 2005, filed with the Commission on April 29, 2005
(Commission File No. 001-09100);
(b) The Company's Quarterly Report on Form 10-Q for its fiscal quarter
ended April 30, 2005, filed with the Commission on June 10, 2005
(Commission File No. 001-09100);
(c) The Company's Current Reports on Form 8-K, filed with the Commission
on April 13, 2005, April 25, 2005, May 27, 2005 and July 7, 2005
(Commission File No. 001-09100); and
(d) The description of the Company's Common Stock contained in its
Registration Statement on Form 8-A filed with the Commission on March
13, 1986, as amended by Form 8-A filed with the Commission on November
14, 1986, and any other amendment or report filed for the purpose of
updating such description.
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, as amended (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
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
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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.
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ITEM 8. EXHIBITS
See the attached Exhibit Index at page 8, which is incorporated herein
by reference.
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 this 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 this Registration
Statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this 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 with or
furnished to the Commission by the Registrant pursuant to Section 13 or
15(d) of the Exchange Act that are incorporated by reference in this
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.
(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 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 this 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.
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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 Form S-8
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Fresno, State of California, on
July 15, 2005.
GOTTSCHALKS INC.
By: /s/ James R. Famalette
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James R. Famalette
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints James
R. Famalette and J. Gregory Ambro, and each of them, acting individually and
without the other, as his or her true and lawful attorneys-in-fact and
agents, with full power 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, exhibits thereto and
other documents in connection therewith) 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, and each of them, 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
they might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or either of them individually, or their
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
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Chairman
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Joseph W. Levy
/s/ James R. Famalette President, Chief July 15, 2005
---------------------- Executive Officer, and
James R. Famalette Director
(Principal Executive
Officer)
/s/ J. Gregory Ambro Chief Administrative July 15, 2005
--------------------- and Financial Officer
J. Gregory Ambro (Principal Financial
and Accounting Officer)
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/s/ O. James Woodward III Director July 15, 2005
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O. James Woodward III
Director
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Sharon Levy
/s/ James L. Czech Director July 15, 2005
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James L. Czech
/s/ Joseph J. Penbra Director July 15, 2005
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Joseph J. Penbera
/s/ Frederick R. Ruiz Director July 15, 2005
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Frederick R. Ruiz
Director
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Thomas H. McPeters
Director
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Dale H. Achabal
/s/ Jorge Pont Sanchez Director July 15, 2005
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Jorge Pont Sanchez
/s/ Philip S. Schlein Director July 15, 2005
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Philip S. Schlein
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EXHIBIT INDEX
Exhibit
Number Description of Exhibit
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4. Gottschalks Inc. 2005 Stock Option Plan. (Filed as Exhibit I to
the Company's Proxy Statement filed with the Commission pursuant to
Section 14(a) of the Exchange Act on May 18, 2005 (Commission File
No. 001-09100) and incorporated herein by this reference.)
5. Opinion of Company Counsel (opinion re legality).
23.1 Consent of Deloitte & Touche LLP (consent of independent registered
public accounting firm).
23.2 Consent of Counsel (included in Exhibit 5).
24. Power of Attorney (included in this Registration Statement under
"Signatures").
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