As filed with the Securities and Exchange Commission on December 2, 1998
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
THE GAP, INC.
(Exact name of issuer as specified in its charter)
DELAWARE 94-1697231
(State or jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Harrison Street, San Francisco, CA 94105
(Address of Principal Executive Offices)
The Gap, Inc. Executive
Deferred Compensation Plan
(Full Title of the Plan)
Lauri Shanahan, Esq.
The Gap, Inc.
One Harrison Street
San Francisco, CA 94105
(Name and address of agent for service)
Telephone number, including area code, of agent for service:
(415) 427-2000
Copies to:
John E. Aguirre, Esq.
Orrick, Herrington & Sutcliffe LLP
400 Sansome Street
San Francisco, CA 94111
Calculation of Registration Fee
Title of Amount to Proposed Proposed Amount of
securities to be registered maximum maximum fee*
be registered offering aggregate
price per offering
share* price
Deferred $60,000,000 100% $60,000,000 $16,680
Compensation
Obligations**
* Estimated solely for the purpose of calculating the registration fee.
** The Obligations are unsecured obligations of The Gap, Inc. to pay
deferred compensation in the future in accordance with the terms of The
Gap, Inc. Executive Deferred Compensation Plan.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents are incorporated by reference in this registration
statement: (i) The Gap, Inc.'s (the "Company") latest annual report filed
pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934
(the "Exchange Act"); (ii) all other reports filed by the Company pursuant
to Sections 13(a) or 15(d) of the Exchange Act since the end of the fiscal
year covered by the Company's latest annual report; and (iii) the description
of the Company's common stock set forth in the Company's Registration
Statement on Form 8-B relating thereto, including any amendment or report
filed for the purpose of updating such description. All documents filed by
the Company after the date of this registration statement pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment (that indicates all securities offered have been sold
or deregisters all securities then remaining unsold), shall be deemed to be
incorporated by reference in this registration statement and to be a part
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
The securities being registered represent obligations (the "Obligations") of
the Company to pay deferred compensation in the future in accordance with the
terms of the Gap Inc. Executive Deferred Compensation Plan (the "Plan"),
which is filed as Exhibit 4.1 to this Registration Statement.
The Obligations are general unsecured obligations of the Company to pay
deferred compensation in the future according to the Plan from the general
assets of the Company, and rank equally with other unsecured and
unsubordinated indebtedness of the Company.
The amount of compensation to be deferred by each participant is determined in
accordance with the Plan based on elections by the participant. Amounts
credited to a participant's account are credited with deemed investment
returns equal to the experience of selected investment funds offered under the
Plan and elected by the Participant. The Obligations are payable upon
termination of employment or on a date or dates selected by the participant in
accordance with the terms of the Plan, subject to exceptions for in-service
withdrawals, death or termination of employment prior to age 50. The
Obligations are payable in the form of a lump-sum distribution or in
installments, at the election of the participant made in accordance with the
terms of the Plan.
Participants or beneficiaries may not sell, transfer, anticipate, assign,
hypothecate or otherwise dispose of any right or interest in the Plan. A
participant may designate one or more beneficiaries to receive any portion of
Obligations payable in the event of death.
The Company may pay all or a part of a participant's vested Obligations as an
in-service withdrawal. If an in-service withdrawal is paid, the Company will
suspend a participant's deferral election prospectively for a period of 12
months and withhold 10% of the amount of the in-service withdrawal. The
Company also reserves the right to amend or terminate the Plan at any time and
for any reason including an amendment that would accelerate the payment of
Obligations.
The Obligations are not convertible into any other security of the Company.
The Obligations will not have the benefit of a negative pledge or any other
affirmative or negative covenant on the part of the Company. No trustee has
been appointed to take action with respect to the Obligations and each
participant in the Plan will be responsible for enforcing his or her own
rights with respect to the Obligations.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Inapplicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Certificate of Incorporation of the Company, as permitted in Section 102
of the General Corporation Law of the State of Delaware (the "GCL"),
eliminates the personal liability of a director to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability for (i) any breach of the director's duty of loyalty to
the Company or its stockholders, (ii) acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
paying a dividend or approving a stock repurchase in violation of Delaware
law, or (iv) any transaction from which the director derived any improper
personal benefit.
Under the Bylaws of the Company, each director and officer of the Company is
entitled to indemnification, as a matter of contractual right, to the fullest
extent permitted by the GCL as the same exists or may hereafter be amended,
against all expenses, liability and loss incurred in connection with any
action, suit or proceeding in which he or she may be involved by reason of the
fact that he or she is or was a director or officer of the Company. Section
145 of the GCL empowers a corporation to indemnify any director or officer, or
former director or officer against expenses, judgments, fines and amounts paid
in settlement actually and reasonably incurred in connection with any action,
suit or proceeding (other than a derivative action) by reason of the fact that
he or she is or was a director or officer or is or was serving at the request
of the corporation as an agent of another entity, if he or she acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Company, and, with respect to any criminal action, had
no reasonable cause to believe his conduct was unlawful. In regard to a
derivative action, indemnification may not be made in respect of any matter as
to which an officer or director is adjudged to be liable unless the Delaware
Court of Chancery, or the court in which such action was brought, shall
determine such person is fairly and reasonably entitled to indemnity.
The Company carries insurance policies in standard form indemnifying its
directors and officers against liabilities arising from certain acts performed
by them in their respective capacities as such. The policies also provide for
reimbursement of the Company for any sums it may be required or permitted to
pay pursuant to applicable law to its directors and officers by way of
indemnification against liabilities incurred by them in their capacities as
such.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
ITEM 8. EXHIBITS
4.1 Gap Inc. Executive Deferred Compensation Plan (the "Plan").
4.2 Amended and Restated Certificate of Incorporation of The Gap, Inc.
(incorporated by reference to Exhibit 3.1 to the registrant's
Annual Report on Form 10-K for the year ended January 30, 1993,
Commission File No. 1-7562).
4.3 Certificate of Amendment of Amended and Restated Certificate of
Incorporation of The Gap, Inc. (incorporated by reference to
Exhibit (3) to the registrant's Quarterly Report on Form 10-Q for
the quarter ended May 2, 1998, Commission File No. 1-7562).
4.4 By-Laws of The Gap, Inc. (incorporated by reference to Exhibit C to
the registrant's Proxy Statement for its May 24, 1988 annual meeting
of stockholders, Commission File No. 1-7562).
4.5 Amended Article IV of By-Laws of The Gap, Inc. (incorporated by
reference to Exhibit 4.4 to the registrant's Registration Statement
on Form S-8, Commission File No. 333-00417).
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
15.1 Letter re unaudited financial information.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Orrick, Herrington & Sutcliffe LLP is contained in
Exhibit 5.1 to this Registration Statement.
24.1 Power of Attorney of Directors.
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 of 1933;
(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;
(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 registration statement is on Form S-3 or Form S-8 and 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 Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933 each filing of
the registrant's annual report pursuant to section 13(a) or section 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of the
Plan's annual report pursuant to section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
Signatures
THE REGISTRANT
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Francisco, State of California on the 1st day
of December, 1998
THE GAP, INC.
(Registrant)
/s/ MILLARD S. DREXLER
Millard S. Drexler
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on
the dated indicated.
Signature Title Date
Principal Executive Officer:
/s/ MILLARD S. DREXLER
Millard S. Drexler President and Chief Executive December 1, 1998
Officer
Principal Financial and
Principal Accounting Officer:
/s/ WARREN R. HASHAGEN
Warren R. Hashagen Senior Vice President and December 1, 1998
Chief Financial Officer
Directors:
*
Adrian D. P. Bellamy Director December 1, 1998
*
Donald G. Fisher Director December 1, 1998
*
Doris F. Fisher Director December 1, 1998
*
Robert J. Fisher Director December 1, 1998
*
John M. Lillie Director December 1, 1998
*
Charles R. Schwab Director December 1, 1998
*
Brooks Walker, Jr. Director December 1, 1998
*
Sergio S. Zyman Director December 1, 1998
*By: /s/ ANNE B. GUST
Anne B. Gust
Attorney-in-Fact
A majority of the members of the Board of Directors.
EXHIBIT INDEX
4.1 The Gap, Inc. Executive Director Deferred Compensation Plan (the
"Plan").
4.2 Amended and Restated Certificate of Incorporation of The Gap, Inc.
(incorporated by reference to Exhibit 3.1 to the registrant's Annual
Report on Form 10-K for the year ended January 30, 1993, Commission
File No. 1-7562).
4.3 Certificate of Amendment of Amended and Restated Certificate of
Incorporation of The Gap, Inc. (incorporated by reference to
Exhibit (3) to the registrant's Quarterly Report on Form 10-Q for
the quarter ended May 2, 1998, Commission File No. 1-7562).
4.4 By-Laws of The Gap, Inc. (incorporated by reference to Exhibit C to
the registrant's Proxy Statement for its May 24, 1988 annual meeting
of stockholders, Commission File No. 1-7562).
4.5 Amended Article IV of By-Laws of The Gap, Inc. (incorporated by
reference to Exhibit 4.4 to the registrant's Registration Statement
on Form S-8, Commission File No. 333-00417).
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
15.1 Letter re unaudited financial information.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Orrick, Herrington & Sutcliffe LLP is contained in
Exhibit 5.1 to this Registration Statement.
24.1 Power of Attorney of Directors.