As filed with the Securities and Exchange Commission on May 16, 2002
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 registrant as specified in its charter)
DELAWARE 94-1697231
(State or jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Two Folsom Street, San Francisco, CA 94105
(Address of Principal Executive Offices) (Zip Code)
The Gap, Inc. Employee Stock Purchase Plan
(Full Title of the Plan)
Lauri Shanahan, Esq.
The Gap, Inc.
Two Folsom Street
San Francisco, CA 94105
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (650) 952-4400
Copies to:
John E. Aguirre, Esq.
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304
Calculation of Registration Fee
Title of Amount to Proposed Proposed Amount of
securities to be registered* maximum maximum registration
be registered offering aggregate fee**
price per offering
share** price**
Common Stock 11,000,000 shares $15.50 $170,500,000 $15,686.00
* This Registration Statement shall also cover any additional shares of the
Registrant's Common Stock that become issuable under The Gap, Inc. Employee
Stock Purchase Plan described herein by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without the
Registrant's receipt of consideration that results in an increase in the
number of the Registrant's outstanding shares of Common Stock.
** Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, on the basis of
$15.50, the average of the high and low prices of shares on the New York
Stock Exchange on May 10, 2002.
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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 latest annual report of The Gap, Inc. (the "Company" or the
"Registrant") filed pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"); (ii) all other reports
filed by the Company pursuant to Section 13(a) or 15(d) of the Exchange Act
since the end of the fiscal year covered by the annual report referred to in
clause (i) above; 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
Inapplicable.
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 or
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she 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 or her 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 The Gap, Inc. Employee Stock Purchase Plan as amended and restated January
29, 2002 (incorporated by reference to the Registrant's Definitive
Additional Proxy Materials, Commission File No. 1-7562, filed on April 2,
2002).
4.2 Certificate of Amendment of Amended and Restated Certificate of
Incorporation of The Gap, Inc. (incorporated by reference to Exhibit 3.2 to
the Registrant's Annual Report on Form 10-K for the year ended January 29,
2000, Commission File No. 1-7562).
4.3 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).
4.4 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 the 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 Wilson Sonsini Goodrich & Rosati, Professional Corporation.
23.1 Consent of Deloitte & Touche LLP.
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23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation, 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
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission 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 an
employee benefit 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.
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(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 Securities Act of 1933 and will be governed by the
final adjudication of such issue.
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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 16th day of
May, 2002.
THE GAP, INC.
(Registrant)
By /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
dates indicated.
Signature Title Date
Principal Executive Officer:
/s/ MILLARD S. DREXLER
----------------------
Millard S. Drexler President and Chief Executive May 16, 2002
Officer
Principal Financial and
Principal Accounting Officer:
/s/ HEIDI KUNZ
--------------
Heidi Kunz Executive Vice President and May 16, 2002
Chief Financial Officer
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Directors:
*
----------------------------------
Adrian D. P. Bellamy Director May 16, 2002
/s/ MILLARD S. DREXLER
----------------------------------
Millard S. Drexler Director May 16, 2002
*
----------------------------------
Donald G. Fisher Director May 16, 2002
*
----------------------------------
Doris F. Fisher Director May 16, 2002
*
----------------------------------
Robert J. Fisher Director May 16, 2002
*
----------------------------------
Glenda A. Hatchett Director May 16, 2002
*
----------------------------------
Steven P. Jobs Director May 16, 2002
*
----------------------------------
John M. Lillie Director May 16, 2002
*
----------------------------------
Arun Sarin Director May 16, 2002
*
----------------------------------
Charles R. Schwab Director May 16, 2002
*By: /s/ ANNE B. GUST
----------------
Anne B. Gust
Attorney-in-Fact
A majority of the members of the Board of Directors.
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EXHIBIT INDEX
4.1 The Gap, Inc. Employee Stock Purchase Plan as amended and restated
January 29, 2002 (incorporated by reference to the Registrant's Definitive
Additional Proxy Materials, Commission File No. 1-7562, filed
April 2, 2002).
4.2 Certificate of Amendment of Amended and Restated Certificate of
Incorporation of The Gap, Inc. (incorporated by reference to Exhibit 3.2 to
the Registrant's Annual Report on Form 10-K for the year ended January 29,
2000, Commission File No. 1-7562).
4.3 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).
4.4 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 the 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 Wilson Sonsini Goodrich & Rosati, Professional Corporation.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation, is
contained in Exhibit 5.1 to this Registration Statement.
24.1 Power of Attorney of Directors.
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