-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OUL6ls6C20Q/TPdlfHeZ5f25B+ZGQNtIyP/E8uyxlZA6fMyhQOMjcl7BBubd4l3H mJrt15l0attHn7rb5bj60A== 0000902595-04-000047.txt : 20040921 0000902595-04-000047.hdr.sgml : 20040921 20040921151420 ACCESSION NUMBER: 0000902595-04-000047 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20040921 DATE AS OF CHANGE: 20040921 EFFECTIVENESS DATE: 20040921 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GOTTSCHALKS INC CENTRAL INDEX KEY: 0000790414 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-DEPARTMENT STORES [5311] IRS NUMBER: 770159791 STATE OF INCORPORATION: DE FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-119149 FILM NUMBER: 041039239 BUSINESS ADDRESS: STREET 1: 7 RIVER PARK PL E STREET 2: P O BOX 28920 CITY: FRESNO STATE: CA ZIP: 93720 BUSINESS PHONE: 2094348000 MAIL ADDRESS: STREET 1: 7 RIVER PARK PLACE EAST STREET 2: P O BOX 28920 CITY: FRESNO STATE: CA ZIP: 93720 S-8 1 form_s-8.txt FORM S-8 As filed with the Securities and Exchange Commission on September 21, 2004 Registration No. 333- ================================================================================ 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 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) ___________________ GOTTSCHALKS INC. AMENDED AND RESTATED 1998 STOCK OPTION PLAN (Full title of the plan) ___________________ J. Gregory Ambro P.O. Box 28920 Fresno, California 93729 (Name and address of agent for service) ___________________ Telephone number, including area code, of agent for service: (559) 434-4800 ___________________ COPY TO: Richard Boehmer, Esq. O'Melveny & Myers LLP 400 South Hope Street Los Angeles, California 90071-2899 CALCULATION OF REGISTRATION FEE -------------------------------------------------------------------------- Proposed Proposed maximum maximum Title of Amount offering aggregate Amount of securities to be price offering registration to be registered registered per unit price fee -------------------------------------------------------------------------- Common Stock, $0.01 par value: 1,200,000(1) $4.745(2) $5,694,000(2) $721.43(2) -------------------------------------------------------------------------- (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 Gottschalks Inc. Amended and Restated 1998 Stock Option Plan (the "Plan") may become subject to the Plan. (2) Pursuant to 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 September 14, 2004, as reported on the New York Stock Exchange and published in The Wall Street Journal. The Exhibit Index for this Registration Statement is at page 5. ========================================================================== 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. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE Gottschalks Inc. (the "Registrant") filed a Registration Statement on Form S-8, relating to the Plan, with the Commission on August 14, 1998 (SEC File No. 333-61471), the contents of which are incorporated herein by reference. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Not applicable. ITEM 8. EXHIBITS See the attached Exhibit Index at page 5. 2 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 13th day of September, 2004. GOTTSCHALKS INC., a Delaware corporation By: /s/ James R. Famalette --------------------------------------- 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 individually, his/her true and lawful attorneys-in-fact and agents, with full powers of substitution and resubstitution, for him/her and in his/her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement (or any other registration statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933), 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/she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or his/her substitute or substitutes, may lawfully 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 below by the following persons in the capacities and on the dates indicated. Signature Title Date --------- ----- ---- /s/ Joseph W. Levy - ---------------------- Chairman September 13, 2004 Joseph W. Levy 3 Signature Title Date --------- ----- ---- /s/ James R. Famalette - ---------------------- President, Chief September 13, 2004 James R. Famalette Executive Officer and Director (principal executive officer) /s/ J. Gregory Ambro - ---------------------- Chief Administrative September 13, 2004 J. Gregory Ambro and Financial Officer (principal financial and accounting officer) /s/ O. James Woodward III - ---------------------- Director September 13, 2004 O. James Woodward III /s/ Sharon Levy - ---------------------- Director September 13, 2004 Sharon Levy /s/ James L. Czech - ---------------------- Director September 13, 2004 James L. Czech /s/ Joseph J. Penbera - ---------------------- Director September 13, 2004 Joseph J. Penbera /s/ Fred Ruiz - ---------------------- Director September 13, 2004 Fred Ruiz /s/ Max Gutmann - ---------------------- Director September 13, 2004 Max Gutmann /s/ Tom McPeters - ---------------------- Director September 13, 2004 Tom McPeters /s/ Dale H. Achabal - ---------------------- Director September 13, 2004 Dale H. Achabal /s/ Jorge Pont Sanchez - ---------------------- Director September 13, 2004 Jorge Pont Sanchez 4 EXHIBIT INDEX Exhibit Number Description of Exhibit - ------- ---------------------- 4.1 Gottschalks Inc. Amended and Restated 1998 Stock Option Plan.(1) 5 Opinion of Counsel (opinion re legality). 23.1 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"). (1) Previously filed with the Commission as Appendix B to the Registrant's Definitive Proxy Statement on Form 14A filed with the Commission on May 8, 2001 (SEC File No. 001-09100) and incorporated herein by this reference. 5 EX-5 2 exh_5.txt EXHIBIT 5 EXHIBIT 5 O --------------------------------------- O'MELVENY & MYERS LLP CENTURY CITY 400 South Hope Street TYSONS CORNER IRVINE SPECTRUM Los Angeles, California 90071-2899 WASHINGTON, D.C. MENLO PARK HONG KONG NEWPORT BEACH TELEPHONE (213) 430-6000 LONDON NEW YORK FACSIMILE (213) 430-6407 SHANGHAI SAN FRANCISCO INTERNET: www.omm.com TOKYO OUR FILE NUMBER September 21, 2004 325,525-001 VIA EDGAR - --------- Gottschalks Inc. 7 River Park Place East Fresno, CA 93720 RE: REGISTRATION STATEMENT ON FORM S-8 ---------------------------------- Ladies and Gentlemen: We have acted as special counsel to Gottschalks Inc., a Delaware corporation (the "Company"), in connection with the preparation and filing by the Company with the Securities and Exchange Commission of a Registration Statement on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended, with respect to an aggregate of 1,200,000 shares of Common Stock of the Company, par value $0.01 per share (the "Shares") to be issued pursuant to the Gottschalks Inc. Amended and Restated 1998 Stock Option Plan (the "Plan"). We have examined originals or copies of those corporate and other records and documents we considered appropriate. We have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity with originals of all documents submitted to us as copies. On the basis of such examination, our reliance upon the assumptions in this opinion and our consideration of those questions of law we considered relevant, and subject to the limitations and qualifications in this opinion, we are of the opinion that the Shares have been duly authorized by all necessary corporate action on the part of the Company, and when issued in accordance with such authorization and in accordance with the terms of the Plan, and the countersigning of any certificates representing the Shares by a duly authorized signatory of the registrar for the Company's Common Stock, or the book-entry of the Shares by the transfer agent for the Company's Common Stock in the name of The Depository Trust Company, or its nominee, the Shares will be validly issued, fully paid and non-assessable. O'MELVENY & MYERS LLP September 21, 2004 - Page 2 We consent to your filing of this opinion as an exhibit to the Registration Statement. This opinion is expressly limited to the matters set forth above and we render no opinion, whether by implication or otherwise, as to any other matters. We assume no obligation to update or supplement this opinion to reflect any facts or circumstances that arise after the date of this opinion and come to our attention, or any future changes in law. Respectfully submitted, /s/ O'MELVENY & MYERS LLP EX-23 3 exh_23-1.txt EXHIBIT 23.1 EXHIBIT 23.1 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We consent to the incorporation by reference in this Registration Statement of Gottschalks Inc. on Form S-8, of our report dated April 20, 2004 (September 10, 2004 as to the second paragraph of Note 6) (which expresses an unqualified opinion and contains explanatory paragraphs relating to the adoption of new accounting standards and the restatement of the January 31, 2004 and February 1, 2003 consolidated balance sheets), appearing in this Annual Report on Form 10-K/A of Gottschalks Inc. for the year ended January 31, 2004. /s/ Deloitte & Touche LLP Fresno, California September 21, 2004 -----END PRIVACY-ENHANCED MESSAGE-----