REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement")
is made and entered into as of August 20, 1998, between
Gottschalks Inc., a Delaware corporation
("Gottschalks"), and The ▇▇▇▇▇▇ Company, a California
corporation ("▇▇▇▇▇▇").
RECITALS
WHEREAS, Gottschalks has entered into that certain
Asset Purchase Agreement, dated as of July 21, 1998
(the "Asset Purchase Agreement"; all capitalized terms
used herein and not otherwise defined shall have the
meanings given to such terms in the Asset Purchase
Agreement), with ▇▇▇▇▇▇ and El Corte Ingles, S.A., a
Spanish corporation and the parent of ▇▇▇▇▇▇ ("ECI").
WHEREAS, pursuant to the Asset Purchase Agreement (i)
Gottschalks has agreed to issue to ▇▇▇▇▇▇ on the
Closing Date two million ninety-five thousand nine
hundred (2,095,900) shares (the "Shares") of
Gottschalks' common stock, par value $.01 per share
(the "Gottschalks Common Stock"),
WHEREAS, the Shares have not been registered under the
Securities Act and are subject to restrictions on
resale or other disposition;
WHEREAS, Gottschalks desires to grant, and ▇▇▇▇▇▇
desires to accept, the registration rights set forth in
this Agreement in respect of the Registrable Shares, as
defined herein; and
WHEREAS, execution and delivery of this Agreement by
the parties hereto is a condition precedent to the
closing of the Asset Purchase Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises
contained herein and intending to be legally bound the
parties agree as follows:
SECTION 1. Definitions.
As used in this Agreement, the following terms shall
have the following respective meanings:
"Divesture Date" means any date upon which ▇▇▇▇▇▇ or
ECI (if the Shares are transferred to ECI pursuant to
Section 8 hereof) is the registered owner of less than
ten percent (10%) on a fully diluted basis of the
Gottschalks Common Stock then outstanding.
"fully diluted" means, with respect to the Gottschalks
Common Stock, the total number of outstanding shares of
the Gottschalks Common Stock (for such purposes,
treating as outstanding Gottschalks Common Stock all
options or warrants to purchase and securities
convertible into (or exchangeable or redeemable for)
the Gottschalks Common Stock as of the relevant
measurement date).
"Holder" means ▇▇▇▇▇▇ and any transferee or assignee as
permitted under Section 8 hereof up until but not
including and not beyond the Divesture Date.
"Registrable Shares" means the Shares issued to ▇▇▇▇▇▇
pursuant to the Asset Purchase Agreement or the
transactions contemplated thereby, including any
securities issued in respect thereof pursuant to a
stock dividend, stock split, recapitalization or
similar event. As to any particular Registrable
Shares, once issued such securities shall cease to be
Registrable Shares when (A) a registration statement
with respect to the sale of such securities shall have
become effective under the Securities Act and such
securities shall have been disposed of in accordance
with such registration statement, (B) such securities
shall have been sold in accordance with Rule 144 (or
any successor provision) under the Securities Act or
(C) such securities are eligible to be resold pursuant
to Rule 144(k).
The terms "register," "registered" and "registration"
refer to the preparation and filing with the SEC of a
registration statement or similar document in
compliance with the Securities Act and the declaration
or ordering of the effectiveness of such registration
statement or document.
"Registration Expenses" means all expenses, except
Selling Expenses, incurred by Gottschalks while
complying with Section 2 of this Agreement.
Registration Expenses shall include, without
limitation, all registration and filing fees and other
qualification fees, blue sky fees, printing expenses
and fees and disbursements of Gottschalks' accountants
and legal counsel incurred in any registration pursuant
to Section 2.
"SEC" means the United States Securities and Exchange
Commission or any successor agency.
"Securities Act" means the Securities Act of 1933, as
amended from time to time, and any successor statute.
"Selling Expenses" means all underwriting discounts,
selling commissions, stock transfer taxes relating to
any Holder's registered securities and any fees and
disbursements of counsel, accountants or other agents
for any Holder.
"Asset Purchase Agreement" shall have the meaning given
in the recitals hereof.
SECTION 2. Registration.
(a) Registration Statement. If Gottschalks proposes
to register any Gottschalks Common Stock, whether or
not for sale for its own account (other than a
registration relating to the sale of securities to
participants in a dividend reinvestment plan, a
registration on Form S-4 relating to a business
combination or similar transaction permitted to be
registered on such Form S-4, a registration on Form S-8
relating to the sale of securities to participants in a
stock or employee benefit plan, a registration
permitted under Rule 462 under the Securities Act
registering additional securities of the same class as
were included in an earlier registration statement for
the same offering, and declared effective, or any other
registration on a Form not suitable for the
registration of Registrable Shares), Gottschalks will
give written notice to all Holders of Gottschalks'
intention to effect such a registration and include in
such registration all Registrable Shares with respect
to which Gottschalks has received written notice from a
Holder for inclusion therein within 10 days after the
date of Gottschalks' notice (in such capacity such
Holder a "Requesting Holder"); provided, however, that
nothing in this Section 2 shall be construed as
granting to any Holder the right to require Gottschalks
to initiate the registration of any Gottschalks Common
Stock; provided, further, that:
(i) if, at any time after giving written notice of
its intention to register any shares and, prior to the
effective date of the Registration Statement filed in
connection with such registration, Gottschalks shall
determine for any reason not to register such shares,
Gottschalks may, at its election, give written notice
of such determination to each Holder requesting
inclusion therein, and, thereupon, Gottschalks shall be
relieved of its obligation to register any Registrable
Shares in connection with such withdrawn or unfiled
registration (but not of its obligation to pay the
Registration Expenses in connection therewith pursuant
to Section 3 hereto); and
(ii) if such registration shall be in connection with
an underwritten public offering and the underwriter or
managing underwriter, as the case may be, shall advise
Gottschalks that in its opinion the number of shares
requested to be included in such registration or
offering exceeds the number of such securities which
can be sold in (or during the time of) such offering or
would have an adverse impact on the price of such
securities, the amount to be registered shall be
allocated first, to Gottschalks, and second, pro rata
among the Requesting Holders desiring to participate in
such registration and the other holders of the
Gottschalks' securities requested to be included in
such registration, based on the numbers of shares
initially proposed to be included by such holders.
(b) Selection of Managing Underwriter; Customary
Agreements. If any registration pursuant to this
Section 2 is an underwritten public offering:
(i) the Holders shall not have the right to select the
managing underwriter to administer such offering; and
(ii) the Requesting Holders agree to enter into
customary agreements (including, if requested, an
underwriting agreement), and take such other actions in
connection therewith as Gottschalks or the
underwriter(s) shall request in order to consummate
such registration.
(c) Notice of Effectiveness. Upon declaration of
effectiveness by the SEC of a registration statement
filed pursuant to this Agreement, Gottschalks shall
give written notice thereof to each Holder whose
Registrable Securities are included in such
registration statement.
(d) Blackout Periods. Following the effective date
of any registration statement filed pursuant to this
Section 2, Gottschalks shall be entitled, from time to
time, to notify the Holders to discontinue offers or
sales of Registrable Securities pursuant to such
registration statement for the period of time stated in
such notice, up to a maximum of sixty (60) consecutive
days (such notice being a "Blackout Notice"), if
Gottschalks determines, in its reasonable business
judgment, that such offers and sales would materially
interfere with any financing, acquisition, corporate
reorganization, securities offering or other material
transaction, or if there has been any development,
event, occurrence or change in circumstances which
Gottschalks would not be required to disclose at such
time other than in connection with a registration
statement, involving Gottschalks or any of its
subsidiaries, taken as a whole. Such notice shall be
signed by an authorized officer of Gottschalks and
shall certify such determination. Each Holder agrees
that upon receipt of a Blackout Notice such Holder
shall discontinue offers or sales of Registrable
Securities pursuant to any such registration statement
for the period of time stated in the Blackout Notice
and the time period set forth in subsection 2(e) shall
be tolled during such period. Gottschalks may issue
any number of Blackout Notices and such notices may be
given consecutively.
(e) Effectiveness of Registration Statements.
Gottschalks shall cause any registration statement
filed pursuant to this Section 2 to remain effective
for at least ninety (90) days after it is declared or
ordered effective or until the Holders have completed
the distribution described therein, whichever first
occurs; provided, however, that in no event will
Gottschalks be required to prepare or file audited
financial statements with respect to any fiscal year by
a date prior to the date on which Gottschalks would be
so required to prepare and file such audited financial
statements if such registration statement were no
longer effective and usable.
(f) Holdback Agreement. In the event of any filing
of a prospectus supplement or the commencement of an
underwritten public distribution of the Gottschalks
Common Stock under a Registration Statement, whether or
not Registrable Shares are included, each Holder agrees
not to effect any public sale or distribution of the
Gottschalks Common Stock (except as part of such
underwritten public distribution), including a sale
pursuant to Rule 144 or Rule 144A under the Securities
Act, during a period designated by Gottschalks in a
written notice duly given to Holders, which period
shall commence approximately 14 days prior to the
effective date of any such filing of such prospectus
supplement or the commencement of such underwritten
public distribution of such Gottschalks Common Stock
under a Registration Statement and shall continue for
up to 90 consecutive days after such effective date or
commencement.
SECTION 3. Expenses of Registration.
For the first two registrations of Gottschalks Common
Stock in which any Holder exercises its right to
include in such registration Registrable Shares
pursuant to Section 2 hereof (in such capacity such
Holder a "Participating Holder"), Gottschalks shall
bear the Registration Expenses arising out of such
registrations; provided, however, that all Selling
Expenses relating to the registered securities of any
Participating Holder shall be borne by all
Participating Holders and Gottschalks shall have no
liability therefor. Thereafter, for any registration
of Gottschalks Common Stock pursuant to Section 2
hereof, the Participating Holders, jointly and
severally, shall promptly reimburse Gottschalks for all
incremental Registration Expenses attributable to the
inclusion of Registrable Shares in such registration
statement in addition to bearing pro rata all Selling
Expenses relating to the Registrable Shares.
SECTION 4. Registration Procedures.
For each registration, qualification or compliance
carried out by Gottschalks pursuant to this Agreement,
Gottschalks shall give each Holder written notice of
the initiation of such registration, qualification or
compliance and Gottschalks will:
(a) provide to each Holder participating in such
registration a reasonable number of copies of the
registration statement, preliminary prospectus, final
prospectus and any other documents as may reasonably be
necessary to facilitate a public offering;
(b) prepare and file with the SEC such amendments and
supplements to such registration statement and the
prospectus used in connection therewith as may be
necessary to keep such registration statement effective
and to comply with the provisions of the Securities Act
with respect to the disposition of all Shares covered
by such registration statement during the effectiveness
of such registration statement;
(c) use its best efforts to register or qualify all
Shares covered by such registration statement under
such securities or blue sky laws of such jurisdiction
as each Holder shall reasonably request, except that
Gottschalks shall not for any such purpose be required
to qualify generally to do business as a foreign
corporation in any jurisdiction wherein it is not so
qualified, or to subject itself to taxation in any such
jurisdiction or to consent generally to service of
process in any such jurisdiction; and
(d) immediately notify each Holder of Shares covered
by such registration statement, at any time when a
prospectus relating thereto is required to be delivered
under the Securities Act, of the happening of any event
as a result of which the prospectus included in such
registration statement, as then in effect, includes an
untrue statement of a material fact or omits to state
any material fact required to be stated therein or
necessary to make the statements therein not misleading
in light of the circumstances then existing, and at the
request of any such Holder prepare and furnish to such
Holder a reasonable number of copies of a supplement to
or an amendment of such prospectus as may be necessary
so that, as thereafter delivered to the purchasers of
such Shares, such prospectus shall not include an
untrue statement of a material fact or omit to state a
material fact required to be stated therein or
necessary to make the statements therein not misleading
in light of the circumstances then existing.
SECTION 5. Information by Holder.
Each Holder of Registrable Securities participating in
any registration shall provide Gottschalks, when
requested, with written information regarding itself,
its ownership of securities of Gottschalks, the
distribution proposed by such Holder and such other
information as may be legally required in connection
with such registration. Such writing shall expressly
state that it is being furnished to Gottschalks for use
in the preparation of a registration statement,
preliminary prospectus, supplementary prospectus, final
prospectus or amendment or supplement thereto, as the
case may be. Each Holder agrees, by its acquisition of
Registrable Shares and its acceptance of the benefits
provided to it hereunder, to furnish promptly to
Gottschalks all information required to be disclosed in
order to make any previously furnished information not
misleading.
SECTION 6. Delay of Registration.
No Holder shall obtain or seek an injunction
restraining or otherwise delaying any registration
referred to in this Agreement as a result of any
controversy arising out of the interpretation or
implementation of this Agreement.
SECTION 7. Indemnification.
(a) Gottschalks will indemnify each Holder of Shares
covered by any such registration statement, its
officers, directors and partners and each person who
controls such Holder within the meaning of Section 15
of the Securities Act against all reasonable expenses,
claims, losses, damages and liabilities (or actions in
respect thereof), including any of the foregoing
incurred in the defense and settlement of any
litigation, arising out of or based upon any untrue
statement (or alleged untrue statement) of a material
fact contained in any registration statement,
prospectus or documents incorporated by reference
therein, or based upon any omission (or alleged
omission) of a material fact required to be stated
therein or necessary to make the statements therein not
misleading, and including any of the foregoing incurred
or arising out of any violation by Gottschalks of the
Securities Act or any rule or regulation promulgated
under the Securities Act; provided, however, that
Gottschalks will not be under an obligation to
indemnify any of them (i) if any of the foregoing are
based upon any untrue statement or omission or alleged
untrue statement or omission made in reliance upon
information furnished to Gottschalks by any Holder or
controlling person or (ii) to the extent that any such
loss, claim, damage, liability (or action or proceeding
in respect thereof) or expense arises out of any
Holder's or underwriter's failure to send or give a
copy of the final prospectus or supplement to the
persons asserting an untrue statement or alleged untrue
statement or omission or alleged omission at or prior
to the written confirmation of the sale of Registrable
Shares to such person if such statement or omission was
corrected in such final prospectus or supplement;
provided further, that the indemnity agreements
contained in this subsection shall not apply to amounts
paid in any settlement if such settlement is effected
without the consent of Gottschalks.
(b) Each Holder participating in a registration
pursuant to this Agreement will indemnify Gottschalks,
its directors and officers, each person who controls
Gottschalks within the meaning of Section 15 of the
Securities Act, and each other Holder and each of its
officers and directors and each person controlling such
Holder within the meaning of Section 15 of the
Securities Act, against all reasonable expenses,
claims, losses, damages and liabilities incurred and
actions arising out of any untrue statement (or alleged
untrue statement) of a material fact contained in any
registration statement and any documents related
thereto or based upon any omission (or alleged
omission) of a material fact required to be stated
therein or necessary to make the statements therein not
misleading, and including any of the foregoing incurred
or arising out of the violation by any such Holder of
the Securities Act or any rule or regulation
promulgated thereunder; provided, however, that such
Holder will only be obligated to indemnify any of them
for any of the foregoing based upon a material
misstatement or an omission (alleged or otherwise) made
in reliance upon information furnished to Gottschalks
by such Holder.
(c) Each party entitled to indemnification under this
Section 7 ("Indemnified Party") shall give prompt
notice to the party required to provide indemnification
("Indemnifying Party") as soon as Indemnified Party has
actual knowledge of any claim for which indemnify may
be sought, and shall permit Indemnifying Party to
assume and control the defense of any such claim or any
litigation resulting therefrom, provided that
Indemnified Party will have the right to approve (whose
approval shall not be unreasonably withheld) of the
counsel chosen by Indemnifying Party to defend such
claim or litigation, and provided that Indemnified
Party may participate in such defense at Indemnified
Party's expense. The failure of any Indemnified Party
to give notice of a claim subject to indemnification
shall not relieve Indemnifying Party of its obligations
under this Agreement unless the failure to give such
notice is materially prejudicial to Indemnifying
Party's ability to defend such claim. Indemnifying
Party shall not assume the defense for matters as to
which there is a conflict of interest or separate and
different defense. In defending such claim,
Indemnifying Party shall not, without the prior written
consent of Indemnified Party, consent to the entry of
any judgment or enter into any settlement which does
not include an unconditional provision releasing
Indemnified Party from all liability in respect to such
claim or litigation.
(d) The obligations of Gottschalks and Holders under
this Section 7 shall survive the completion of any
offering of Registrable Securities in a registration
statement under this Agreement, and otherwise.
SECTION 8. Transfer of Registration Rights.
Any Holder's rights under Section 2 hereof may not be
assigned or transferred except to an affiliate that is
bound by and becomes a party to that certain
Stockholders' Agreement dated as of August 20, 1998
among Gottschalks, ECI, ▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ ▇▇▇▇.
SECTION 9. Amendment of Registration Rights.
Any provision of this Agreement may be amended and the
observance thereof may be waived (either generally or
in a particular instance and either retroactively or
prospectively), only with the written consent of
Gottschalks and Holders of a majority of the
Registrable Securities then outstanding. Any amendment
or waiver effected in accordance with this Section 9
shall be binding upon each Holder, each transferee or
assignee of Holder pursuant to Section 8 of this
Agreement.
SECTION 10. Termination of Registration Rights.
No Holder shall be entitled to exercise any right
provided for in this Agreement after the fifteenth
anniversary of the date hereof.
SECTION 11. Notices.
All notices, requests, consents and other
communications hereunder shall be in writing and shall
be deemed to have been made (i) when delivered
personally or by telecopier, (ii) if to a party in the
same country as the mailing party, when mailed first
class registered or certified mail, postage prepaid, or
(iii) if to a party in a different country from the
sending party, on the second day following deposit with
a reputable commercial air courier, charges prepaid, to
each respective party as shown below:
(a) If to the holders of Registrable Securities, to
the addresses shown on the signature page(s) hereto,
with a copy to:
McPeters, McAlearney, Shimoff & ▇▇▇▇
▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to Gottschalks to:
Gottschalks Inc.
▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
O'Melveny & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: D. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
SECTION 12. Parties in Interest.
This Agreement shall be binding upon and inure to the
benefit of each party, and nothing in this Agreement,
express or implied, is intended to confer upon any
other person any rights or remedies of any nature
whatsoever under or by reason of this Agreement.
Nothing in this Agreement is intended to relieve or
discharge the obligation of any third person to any
party to this Agreement.
SECTION 13. Counterparts.
This Agreement may be executed in any number of
counterparts and by different parties in separate
counterparts, each of which when so executed shall be
deemed to be an original and all of which taken
together shall constitute one and the same agreement.
SECTION 14. Headings.
The headings in this Agreement are for convenience only
and shall not limit or otherwise affect the meaning
hereof.
SECTION 15. Governing Law.
This Agreement shall be governed by and construed in
accordance with the laws of the State of California,
without regard to principles of conflict of law.
SECTION 16. Arbitration.
(a) Any controversy, dispute or claim under, arising
out of, in connection with or in relation to this
Agreement, including but not limited to the
negotiation, execution, interpretation, construction,
coverage, scope, performance, non-performance, breach,
termination, validity or enforceability of this
Agreement or this Section 16 shall be determined by
arbitration conducted in accordance with the Commercial
Arbitration Rules or then existing rules for commercial
arbitration of the American Arbitration Association.
The arbitration shall additionally be governed by the
California Arbitration Act. The arbitration shall be
before a single arbitrator who shall be selected by
mutual agreement of the parties from among a list of
seven potential arbitrators provided by the American
Arbitration Association. If the parties cannot agree
on an arbitrator from this first list, the parties
hereto shall select an arbitrator for such arbitration
from a second list of seven potential arbitrators
provided by the American Arbitration Association with
the Holders, on the one hand, and Gottschalks, on the
other, alternately striking names, with the last name
remaining to be the arbitrator so selected. In the
event that either party seeks a temporary restraining
order, preliminary injunction or other provisional
relief, the provisions of Section 1281.8 of the Cal.
Civ. Proc. Code shall apply. The arbitration of such
issues, including without limitation any award of
damages suffered by any party hereto by reason of the
acts or omissions of any party, shall be final and
binding upon the parties to the maximum extent
permitted by law. The parties intend that this Section
shall be valid, binding, enforceable and irrevocable
and shall survive the termination of this Agreement.
(b) Any arbitration proceedings hereunder shall be held
in Los Angeles, California.
(c) Judgment upon any award rendered by the
arbitrator(s) may be entered by any court having
jurisdiction thereof.
SECTION 17. Attorney's Fees. In the event of any
action complaint, petition or other proceeding,
("Action") by any party arising under or out of, in
connection with or in respect of, this Agreement, the
prevailing party shall be entitled to reasonable
attorney's fees, costs and expenses incurred in such
Action. Attorney's fees incurred in enforcing any
judgment in respect of this Agreement are recoverable
as a separate item. The parties intend that the
preceding sentences be severable from the other
provisions of this Agreement, survive any judgement
and, to the maximum extent permitted by law, not be
deemed merged into such judgment.
SECTION 18. Severability.
In the event that any one or more of the provisions
contained herein, or the application thereof in any
circumstance, is held invalid, illegal or
unenforceable, the validity, legality and
enforceability of any such provision in every other
respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
SECTION 19. Entire Agreement.
This Agreement, together with the Asset Purchase
Agreement and the other agreements of Gottschalks,
▇▇▇▇▇▇ and ECI of even date herewith, contains the
entire understanding of the parties with respect to the
subject matter of this Agreement.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
GOTTSCHALKS INC.
/S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
THE ▇▇▇▇▇▇ COMPANY
/S/ ▇▇▇▇▇▇▇▇ DEL NOGAL
/S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Notice Address:
c/o El Corte Ingles, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇
Facsimile: 011-34-91-402-1567
With a copy to:
▇▇▇▇▇▇▇▇ McAlearney Shimoff
& ▇▇▇▇
▇ ▇.▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, CA 92373
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇