Prepared by R.R. Donnelley Financial -- Post Effective Amendment #1 to Form S-8
As filed with the Securities and Exchange Commission on September 13, 2002
Registration No. 333-72921
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 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. 2002 Stock Option 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
EXPLANATORY STATEMENT
This Post-Effective Amendment No. 1 to Registration Statement No. 333-72921 on Form S-8 is being filed by The Gap, Inc. to reflect the change in the name of Stock Up On Success, The Gap, Inc.’s Stock Option Bonus
Program (the “Plan”). Effective as of September 10, 2002, the Plan was renamed “The Gap, Inc. 2002 Stock Option 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 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 she reasonably believed to be in or not opposed to the best interests of the Company, and, with
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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. 2002 Stock Option Plan (formerly named Stock Up On Success, The Gap, Inc.’s Stock Option Bonus
Program) (incorporated by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form S-8, Commission File No. 333-72921, filed on February 25, 1999). |
| |
| 4.2 |
|
Amendment No. 1 to Stock Up On Success, The Gap, Inc.’s Stock Option Bonus Program. |
| |
| 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 |
|
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). |
| |
| 4.5 |
|
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). |
| |
| 4.6 |
|
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. |
| |
| 15.1 |
|
Letter re unaudited financial information. |
3
| |
| 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 (incorporated by reference to Exhibit 24.1 to the Registrant’s Registration
Statement on Form S-8, Commission File No. 333-72921, filed on February 25, 1999). |
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 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
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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 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 Post-Effective Amendment No. 1 to Registration Statement No. 333-72921 on Form S-8 to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of San Francisco, State of California on the 13th day of September, 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
Post-Effective Amendment No. 1 to Registration Statement No. 333-72921 on Form S-8 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 Officer |
|
September 13, 2002 |
| |
| PRINCIPAL FINANCIAL AND PRINCIPAL ACCOUNTING
OFFICER: |
|
|
|
|
| |
| /s/ HEIDI KUNZ
Heidi Kunz |
|
Executive Vice President and Chief Financial Officer |
|
September 13, 2002 |
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| DIRECTORS: |
|
|
|
|
| *
|
|
Director |
|
September 13, 2002 |
| Adrian D. P. Bellamy |
|
|
|
|
| |
| /s/ MILLARD S. DREXLER
Millard S. Drexler |
|
Director |
|
September 13, 2002 |
| *
Donald G. Fisher |
|
Director |
|
September 13, 2002 |
| *
Doris F. Fisher |
|
Director |
|
September 13, 2002 |
| *
Robert J. Fisher |
|
Director |
|
September 13, 2002 |
| |
Glenda A. Hatchett |
|
Director |
|
|
| |
Steven P. Jobs |
|
Director |
|
|
| *
John M. Lillie |
|
Director |
|
September 13, 2002 |
| |
Bob L. Martin |
|
Director |
|
|
| |
Arun Sarin |
|
Director |
|
|
| *
Charles R. Schwab |
|
Director |
|
September 13, 2002 |
| |
Mayo A. Shattuck |
|
Director |
|
|
| |
| *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. 2002 Stock Option Plan (formerly named Stock Up On Success, The Gap, Inc.’s Stock Option Bonus
Program) (incorporated by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form S-8, Commission File No. 333-72921, filed on February 25, 1999). |
| |
| 4.2 |
|
Amendment No. 1 to Stock Up On Success, The Gap, Inc.’s Stock Option Bonus Program. |
| |
| 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 |
|
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). |
| |
| 4.5 |
|
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). |
| |
| 4.6 |
|
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. |
| |
| 15.1 |
|
Letter re unaudited financial information. |
| |
| 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 (incorporated by reference to Exhibit 24.1 to the Registrant’s Registration
Statement on Form S-8, Commission File No. 333-72921, filed on February 25, 1999). |
8