-----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, IwzfF1nh9IJhljNRkuTASYd9+1B3g6T6Czvsimh3WtzS9FSVDFEUyzjkA8vbZwcW NOvopvFDygEiYeilkLZVmQ== 0000039911-96-000024.txt : 19960921 0000039911-96-000024.hdr.sgml : 19960921 ACCESSION NUMBER: 0000039911-96-000024 CONFORMED SUBMISSION TYPE: S-8 POS PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19960919 EFFECTIVENESS DATE: 19960919 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: GAP INC CENTRAL INDEX KEY: 0000039911 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-FAMILY CLOTHING STORES [5651] IRS NUMBER: 941697231 STATE OF INCORPORATION: DE FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: S-8 POS SEC ACT: 1933 Act SEC FILE NUMBER: 033-54686 FILM NUMBER: 96632339 BUSINESS ADDRESS: STREET 1: ONE HARRISON CITY: SAN FRANCISCO STATE: CA ZIP: 94105 BUSINESS PHONE: 4159524400 MAIL ADDRESS: STREET 1: ONE HARRISON STREET CITY: SAN FRANCISCO STATE: CA ZIP: 94105 FORMER COMPANY: FORMER CONFORMED NAME: GAP STORES INC DATE OF NAME CHANGE: 19850617 S-8 POS 1 As filed with the Securities and Exchange Commission on September 19, 1996. Registration No. 33-54686 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 POST-EFFECTIVE AMENDMENT NO. 1 TO 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, San Francisco, CA 94105 (Address of Principal Executive Offices) MANAGEMENT INCENTIVE RESTRICTED STOCK PLAN II 1996 STOCK OPTION AND AWARD PLAN (Full Title of the Plan) Anne B. Gust, 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) 952-4400 Copies to: John E. Aguirre, Esq. Orrick, Herrington & Sutcliffe 400 Sansome Street San Francisco, CA 94111 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 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 Certificate of Incorporation, 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 The Management Incentive Restricted Stock Plan II (incorporated by reference to Exhibit 4.1 to the registrant's Registration Statement on Form S-8, Commission File No. 33-54686). 4.2 Form of Restricted Stock Agreement under the registrant's Management Incentive Restricted Stock Plan II (incorporated by reference to Exhibit 4.2 to the registrant's Registration Statement on Form S-8, Commission File No. 33-54686). 4.3 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 Registrant's By-Laws, (incorporated by reference to Exhibit 4.4 to the Registrant's Registration Statement on Form S-8, Registration No. 333-00417, Commission File No. 1-7562.) 5.1 Opinion of Orrick, Herrington & Sutcliffe re The Management Incentive Restricted Stock Plan II (incorporated by reference to Exhibit 5.1 to the registrant's Registration Statement on Form S-8, Commission File No. 33-54686). 5.2 Opinion of Orrick, Herrington & Sutcliffe re the 1996 Stock Option and Award Plan. 23.1 Consent of Deloitte & Touche LLP. 23.2 Consents of Orrick, Herrington & Sutcliffe are contained in Exhibits 5.1 and 5.2 to this Registration Statement. 24.1 Power of Attorney of Directors (incorporated by reference to Exhibit 25.1 to the registrant's Registration Statement on Form S-8, Commission File No. 33-54686). 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 Bruno, State of California on the 27th day of August, 1996. 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 August 27, 1996 and Chief Executive Officer Principal Financial and Principal Accounting Officer: /s/ Warren R. Hashagen Warren R. Hashagen Senior Vice August 27, 1996 President and Chief Financial Officer Directors: /s/ John G. Bowes John G. Bowes Director August 27, 1996 /s/ Millard S. Drexler Millard S. Drexler Director August 27, 1996 /s/ Donald G. Fisher Donald G. Fisher Director August 27, 1996 /s/ Doris F. Fisher Doris F. Fisher Director August 27, 1996 /s/ Robert J. Fisher Robert J. Fisher Director August 27, 1996 /s/ William A. Hasler William A. Hasler Director August 27, 1996 /s/ John M. Lillie John M. Lillie Director August 27, 1996 /s/ Charles R. Schwab Charles R. Schwab Director August 27, 1996 /s/ Brooks Walker, Jr. Brooks Walker, Jr. Director August 27, 1996 *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 Management Incentive Restricted Stock Plan II (incorporated by reference to Exhibit 4.1 to the registrant's Registration Statement on Form S-8, Commission File No. 33-54686). 4.2 Form of Restricted Stock Agreement under the registrant's Management Incentive Restricted Stock Plan II (incorporated by reference to Exhibit 4.2 to the registrant's Registration Statement on Form S-8, Commission File No. 33-54686). 4.3 Certificate of Incorporation of The Gap, Inc. (and 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 Registrant's By-Laws, (incorporated by reference to Exhibit 4.4 to the Registrant's Registration Statement on Form S-8, Registration No. 333-00417, Commission File No. 1-7562.) 5.1 Opinion of Orrick, Herrington & Sutcliffe re The Management Incentive Restricted Stock Plan II (incorporated by reference to Exhibit 5.1 to the registrant's Registration Statement on Form S-8, Commission File No. 33-54686). 5.2 Opinion of Orrick, Herrington & Sutcliffe re the 1996 Stock Option and Award Plan. 23.1 Consent of Deloitte & Touche LLP. 23.2 Consents of Orrick, Herrington & Sutcliffe are contained in Exhibits 5.1 and 5.2 to this Registration Statement. 24.1 Power of Attorney of Directors (incorporated by reference to Exhibit 25.1 to the registrant's Registration Statement on Form S-8, Commission File No. 33-54686). EX-5 2 OPINION OPINION OF ORRICK, HERRINGTON & SUTCLIFFE August 27, 1996 The Gap, Inc. One Harrison Street San Francisco, CA 94105 Re: The Gap, Inc. Registration Statement on Form S-8 Ladies and Gentlemen: At your request, we are rendering this opinion in connection with the proposed issuance pursuant to The Gap, Inc. 1996 Stock Option and Award Plan (the "Plan"), of up to 191,092 shares of common stock, $0.05 par value ("Common Stock"), of The Gap, Inc., a Delaware corporation (the "Company"). We have examined instruments, documents, and records which we deemed relevant and necessary for the basis of our opinion hereinafter expressed. In such examination, we have assumed the following: (a) the authenticity of original documents and the genuineness of all signatures; (b) the conformity to the originals of all documents submitted to us as copies; and (c) the truth, accuracy, and completeness of the information, representations, and warranties contained in the records, documents, instruments, and certificates we have reviewed. Based on such examination, we are of the opinion that the 191,092 shares of Common Stock to be issued by the Company pursuant to the Plan are validly authorized shares of Common Stock, and, when issued in accordance with the provisions of the Plan, will be legally issued, fully paid, and nonassessable. We hereby consent to the filing of this opinion as an exhibit to this Registration Statement on Form S-8 and to the use of our name wherever it appears in the Registration Statement. In giving such consent, we do not consider that we are "experts" within the meaning of such term as used in the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission issued thereunder with respect to any part of the Registration Statement, including this opinion, as an exhibit or otherwise. Very truly yours, ORRICK, HERRINGTON & SUTCLIFFE EX-23 3 CONSENT INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Post Effective Amendment No. 1 to Registration Statement No. 33- 54686, of The Gap, Inc. on Form S-8 of our report dated February 29, 1996 (except for Note A paragraph two, and Note G paragraph seven, as to which the date is April 10, 1996) incorporated by reference in the Annual Report on Form 10-K of The Gap, Inc. for the year ended February 3, 1996. /s/ Deloitte & Touche LLP San Francisco, California September 13, 1996 -----END PRIVACY-ENHANCED MESSAGE-----