Registration No. 33-
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. EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
Anne B. Gust, Esq.
The Gap, Inc.
900 Cherry Avenue
San Bruno, CA 94066
(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
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*
Common Stock 2,000,000 shares $32.438 $64,876,000.00 $22,371.00
* Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(c), on the basis of
$32.438, the average of the high and low prices of shares on
the New York Stock Exchange on October 7, 1994.
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 Gap, Inc. Employee Stock Purchase Plan.
4.2 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 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).
5.1 Opinion of Orrick, Herrington & Sutcliffe.
23.1 Consent of Deloitte & Touche.
23.2 Consent of Orrick, Herrington & Sutcliffe 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 Bruno, State of California on the 13th day of October,
1994.
THE GAP, INC.
(Registrant)
/s/ Donald G. Fisher
Donald G. Fisher
Chairman 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/ Donald G. Fisher
Donald G. Fisher Chairman October 13, 1994
and Chief
Executive Officer
Principal Financial and
Principal Accounting Officer:
/s/ Robert J. Fisher
Robert J. Fisher Executive Vice October 13, 1994
President and Chief
Financial Officer
Directors:
*/s/ John G. Bowes
John G. Bowes Director October 13, 1994
*/s/ Millard S. Drexler
Millard S. Drexler Director October 13, 1994
*/s/ Donald G. Fisher
Donald G. Fisher Director October 13, 1994
*/s/ Doris F. Fisher
Doris F. Fisher Director October 13, 1994
*/s/ Robert J. Fisher
Robert J. Fisher Director October 13, 1994
*/s/ William A. Hasler
William A. Hasler Director October 13, 1994
*/s/ John M. Lillie
John M. Lillie Director October 13, 1994
*/s/ Charles R. Schwab
Charles R. Schwab Director October 13, 1994
*/s/ Brooks Walker, Jr.
Brooks Walker, Jr. Director October 13, 1994
*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. Employee Stock Purchase Plan.
4.2 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 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).
5.1 Opinion of Orrick, Herrington & Sutcliffe.
23.1 Consent of Deloitte & Touche.
23.2 Consent of Orrick, Herrington & Sutcliffe is contained in
Exhibit 5.1 to this Registration Statement.
24.1 Power of Attorney of Directors.
<PAGE>
THE GAP, INC.
EMPLOYEE STOCK PURCHASE PLAN
<PAGE>
THE GAP, INC.
EMPLOYEE STOCK PURCHASE PLAN
SECTION 1
PURPOSE
The Gap, Inc. hereby establishes The Gap, Inc. Employee
Stock Purchase Plan, effective as of December 1, 1994, in order
to provide eligible employees of the Company and its
participating Subsidiaries with the opportunity to purchase
Common Stock through payroll deductions. The Plan is intended to
qualify as an employee stock purchase plan under Section 423(b)
of the Code.
SECTION 2
DEFINITIONS
2.1 "1934 Act" means the Securities Exchange Act of
1934, as amended. Reference to a specific Section of the 1934
Act or regulation thereunder shall include such Section or
regulation, any valid regulation promulgated under such Section,
and any comparable provision of any future legislation or
regulation amending, supplementing or superseding such Section or
regulation.
2.2 "Board" means the Board of Directors of the
Company.
2.3 "Code" means the Internal Revenue Code of 1986, as
amended. Reference to a specific Section of the Code or
regulation thereunder shall include such Section or regulation,
any valid regulation promulgated under such Section, and any
comparable provision of any future legislation or regulation
amending, supplementing or superseding such Section or
regulation.
2.4 "Committee" shall mean the committee appointed by
the Company's Chief Executive Officer to administer the Plan.
The members of the Committee shall serve at the pleasure of the
Chief Executive Officer. Any member of the Committee may resign
at any time by notice in writing mailed or delivered to the
Secretary of the Company. As of the effective date of the Plan,
the members of the Committee shall consist of the Retirement
Committee appointed under GapShare, the Company's "401(k)" plan.
2.5 "Common Stock" means the common stock of the
Company.
2.6 "Company" means The Gap, Inc., a Delaware
corporation.
2.7 "Compensation" means a Participant's salary, wages
commissions and overtime pay. A Participant's compensation shall
not include any other type of remuneration.
2.8 "Eligible Employee" means every Employee of an
Employer, except (a) any Employee who is an officer of the
Company (as defined in Rule 16a-1 promulgated under the 1934
Act), and (b) any Employee who, immediately after the grant of an
option under the Plan, would own stock and/or hold outstanding
options to purchase stock possessing five percent (5%) or more of
the total combined voting power or value of all classes of stock
of the Company or of any Subsidiary of the Company (including
stock attributed to such Employee pursuant to Section 424(d) of
the Code).
2.9 "Employee" means an individual who is a common-law
employee of any Employer, whether such employee is so employed at
the time the Plan is adopted or becomes so employed subsequent to
the adoption of the Plan. Notwithstanding the preceding
sentence, the term "Employee" shall not include any individual
who is classified as a "seasonal employee" (i.e., an employee
whose customary employment is for not more than 5 months in any
calendar year).
2.10 "Employer" or "Employers" means any one or all of
the Company and those Subsidiaries which, with the consent of the
Board, have adopted the Plan.
2.11 "Enrollment Date" means December 1, 1994, each
June 1 of each subsequent year, and/or such other dates
determined by the Committee (in its discretion) from time to
time.
2.12 "Grant Date" means any date on which a Participant
is granted an option under the Plan.
2.13 "Participant" means an Eligible Employee who
(a) has become a Participant in the Plan pursuant to Section 4.1
and (b) has not ceased to be a Participant pursuant to Section 8
or Section 9.
2.14 "Plan" means The Gap, Inc. Employee Stock Purchase
Plan, as set forth in this instrument and as hereafter amended
from time to time.
2.15 "Purchase Date" means the last business day of
May and November, or such other specific business days as may be
established by the Committee from time to time prior to an
Enrollment Date for all options to be granted on such Enrollment
Date.
2.16 "Subsidiary" means any corporation (other than the
Company) in an unbroken chain of corporations beginning with the
Company if, at the time of granting options under the Plan, each
of the corporations other than the last corporation in the
unbroken chain owns stock possessing 50% or more of the total
combined voting power of all classes of stock in one of the other
corporations in such chain.
SECTION 3
SHARES SUBJECT TO THE PLAN
3.1 Number Available. 2,000,000 shares of Common
Stock are available for issuance pursuant to the Plan. Shares
sold under the Plan may be newly issued shares or treasury
shares.
3.2 Adjustments. In the event of any reorganization,
recapitalization, stock split, reverse stock split, stock
dividend, combination of shares, merger, consolidation, offering
of rights or other similar change in the capital structure of the
Company, the Board may make such adjustment, if any, as it deems
appropriate in the number, kind and purchase price of the shares
available for purchase under the Plan and in the maximum number
of shares subject to any option under the Plan.
SECTION 4
ENROLLMENT
4.1 Participation. Each Eligible Employee may elect
to become a Participant by enrolling or re-enrolling in the Plan
effective as of any Enrollment Date. In order to enroll, an
eligible employee must complete, sign and submit to the Company
an enrollment form in such form as may be specified by the
Committee from time to time. Any enrollment form received by the
Company no later than seven (7) calendar days before an
Enrollment Date shall be effective on that Enrollment Date,
provided that the Committee, in its discretion, may (on a uniform
and nondiscriminatory basis) specify an earlier or later deadline
for the submission of enrollment forms. Any Participant whose
option expires and who has not withdrawn from the Plan
automatically will be re-enrolled in the Plan on the Enrollment
Date immediately following the Purchase Date on which his or her
option expires.
4.2 Payroll Withholding. On his or her enrollment
form, each Participant must elect to make Plan contributions via
payroll withholding from his or her Compensation at a rate equal
to any whole percentage from 1% to 15%, or such lesser percentage
that the Committee may establish from time to time for all
options to be granted on any Enrollment Date. A Participant may
elect to increase or decrease his or her rate of payroll
withholding (effective as of any Enrollment Date) by submitting a
new enrollment form in accordance with such procedures as may be
established by the Committee from time to time. A Participant
may stop his or her payroll withholding by submitting a new
enrollment form in accordance with such procedures as may be
established by the Committee from time to time. In order to be
effective, an enrollment form must be received by the Company no
later than seven (7) calendar days before the date elected for
the change or cessation, provided that the Committee, in its
discretion, may (on a uniform and nondiscriminatory basis)
specify an earlier or later deadline for the submission of
enrollment forms. Any Participant who is automatically
re-enrolled in the Plan will be deemed to have elected to
continue his or her contributions at the percentage last elected
by the Participant.
SECTION 5
OPTIONS TO PURCHASE COMMON STOCK
5.1 Grant of Option. On each Enrollment Date on which
the Participant enrolls or re-enrolls in the Plan, he or she
shall be granted an option to purchase shares of Common Stock.
5.2 Duration of Option. Each option granted under the
Plan shall expire on the earliest to occur of (a) the completion
of the purchase of shares on the last Purchase Date occurring
within 27 months of the Grant Date of such option, (b) such
shorter option period as may be established by the Committee from
time to time prior to an Enrollment Date for all options to be
granted on such Enrollment Date, or (c) the date on which the
Participant ceases to be such for any reason. Until otherwise
determined by the Committee for all options to be granted on an
Enrollment Date, the period referred to in clause (b) in the
preceding sentence shall mean (a) for options granted on
December 1, 1994, the period from December 1, 1994, through
May 31, 1995, and (b) for options granted on or after June 1,
1995, the period from the applicable Enrollment Date through the
last business day of the May next following the Enrollment Date.
5.3 Number of Shares Subject to Option. The number of
shares available for purchase by each Participant under the
option will be established by the Committee from time to time
prior to an Enrollment Date for all options to be granted on such
Enrollment Date. Notwithstanding the preceding, an option (taken
together with all other options then outstanding under this Plan
and under all other similar employee stock purchase plans of the
Employers) shall not give the Participant the right to purchase
shares at a rate which accrues in excess of $25,000 of fair
market value at the applicable Grant Dates of such shares (less
the fair market value at the applicable Grant Dates of any shares
previously purchased during such year under options which have
expired or terminated) in any calendar year during which such
Participant is enrolled in the Plan at any time.
5.4 Other Terms and Conditions. Each option shall be
subject to the following additional terms and conditions:
(a) payment for shares purchased under the option shall
be made only through payroll withholding under Section 4.2;
(b) purchase of shares upon exercise of the option will
be accomplished only in installments in accordance with
Section 6.1;
(c) the price per share under the option will be
determined as provided in Section 6.1; and
(d) the option in all respects shall be subject to such
other terms and conditions (applied on a uniform and
nondiscriminatory basis), as the Committee shall determine
from time to time in its discretion.
SECTION 6
PURCHASE OF SHARES
6.1 Exercise of Option. On each Purchase Date, the
funds then credited to each Participant's account shall be used
to purchase whole shares of Common Stock. Any cash remaining
after whole shares of Common Stock have been purchased shall be
carried forward in the Participant's account for the purchase of
shares on the next Purchase Date. The price of the shares
purchased under any option shall be 85% of the lower of:
(a) the closing price of Common Stock on the Grant Date
for such option on the New York Stock Exchange Composite
Transactions Index; or
(b) the closing price of Common Stock on the Purchase
Date on the New York Stock Exchange Composite Transactions
Index.
6.2 Crediting of Shares. Shares purchased on any
Purchase Date shall be delivered to a broker designated by the
Committee to hold shares for the benefit of the Participants. As
determined by the Committee from time to time, such shares shall
be delivered as physical certificates or by means of a book entry
system. Although the Participant may direct the broker to sell
such shares at any time (subject to applicable securities laws),
the shares may not be transferred to another broker or to any
other person (including the Participant) until 24 months after
the Grant Date of the option with which the shares were
purchased.
6.3 Exhaustion of Shares. If at any time the shares
available under the Plan are over-enrolled, enrollments shall be
reduced proportionately to eliminate the over-enrollment. Any
funds that cannot be applied to the purchase of shares due to
over-enrollment shall be refunded to the Participants (without
interest).
SECTION 8
WITHDRAWAL
8.1 Withdrawal. A Participant may withdraw from the
Plan by submitting a completed enrollment form to the Company. A
withdrawal will be effective only if it is received by the
Company at least seven (7) calendar days before the proposed date
of withdrawal, provided that the Committee, in its discretion,
may specify (on a uniform and nondiscriminatory basis) an earlier
or later deadline for the submission of enrollment forms. When a
withdrawal becomes effective, the Participant's payroll
contributions shall cease and all amounts then credited to the
Participant's account shall be distributed to him or her (without
interest).
SECTION 9
CESSATION OF PARTICIPATION
9.1 Termination of Status as Eligible Employee. A
Participant shall cease to be a Participant immediately upon the
cessation of his or her status as an Eligible Employee (for
example, because of his or her termination of employment from all
Employers for any reason). As soon as practicable after such
cessation, the Participant's payroll contributions shall cease
and all amounts then credited to the Participant's account shall
be distributed to him or her (without interest). Notwithstanding
the preceding sentence, if the Participant's termination is not
entered into the Company's payroll system in sufficient time to
prevent the purchase of shares on the next Purchase Date, the
amounts then credited to the Participant's account shall be used
to purchase whole shares of Common Stock, with any remaining
amount refunded to the Participant (without interest).
SECTION 10
DESIGNATION OF BENEFICIARY
10.1 Designation. Each Participant may, pursuant to
such uniform and nondiscriminatory procedures as the Committee
may specify from time to time, designate one or more
Beneficiaries to receive any amounts credited to the
Participant's account at the time of his or her death.
Notwithstanding any contrary provision of this Section 10,
Sections 10.1 and 10.2 shall be operative only after (and for so
long as) the Committee determines (on a uniform and
nondiscriminatory basis) to permit the designation of
Beneficiaries.
10.2 Changes. A Participant may designate different
Beneficiaries (or may revoke a prior Beneficiary designation) at
any time by delivering a new designation (or revocation of a
prior designation) in like manner. Any designation or revocation
shall be effective only if it is received by the Committee.
However, when so received, the designation or revocation shall be
effective as of the date the designation or revocation is
executed (whether or not the Participant still is living), but
without prejudice to the Committee on account of any payment made
before the change is recorded. The last effective designation
received by the Committee shall supersede all prior designations.
10.3 Failed Designations. If a Participant dies
without having effectively designated a Beneficiary, or if no
Beneficiary survives the Participant, the Participant's Account
shall be payable to his or her estate.
SECTION 11
ADMINISTRATION
11.1 Plan Administrator. The Plan shall be
administered by the Committee. The Committee shall have the
authority to control and manage the operation and administration
of the Plan.
11.2 Actions by Committee. Each decision of a
majority of the members of the Committee then in office shall
constitute the final and binding act of the Committee. The
Committee may act with or without a meeting being called or held
and shall keep minutes of all meetings held and a record of all
actions taken by written consent.
11.3 Powers of Committee. The Committee shall have
all powers and discretion necessary or appropriate to supervise
the administration of the Plan and to control its operation in
accordance with its terms, including, but not by way of
limitation, the following discretionary powers:
(a) To interpret and determine the meaning and
validity of the provisions of the Plan and the options and
to determine any question arising under, or in connection
with, the administration, operation or validity of the Plan
or the options;
(b) To determine any and all considerations affecting
the eligibility of any employee to become a Participant or
to remain a Participant in the Plan;
(c) To cause an account or accounts to be maintained
for each Participant;
(d) To determine the time or times when, and the
number of shares for which, options shall be granted;
(e) To establish and revise an accounting method or
formula for the Plan;
(f) To designate a broker to receive shares purchased
under the Plan and to determine the manner and form in which
shares are to be delivered to the designated broker;
(g) To determine the status and rights of Participants
and their Beneficiaries or estates;
(h) To employ such brokers, counsel, agents and
advisers, and to obtain such broker, legal, clerical and
other services, as it may deem necessary or appropriate in
carrying out the provisions of the Plan;
(i) To establish, from time to time, rules for the
performance of its powers and duties and for the
administration of the Plan;
(j) To adopt such procedures and subplans as are
necessary or appropriate to permit participation in the Plan
by employees who are foreign nationals or employed outside
of the United States;
(k) To delegate to any one or more of its members or
to any other person, severally or jointly, the authority to
perform for and on behalf of the Committee one or more of
the functions of the Committee under the Plan.
11.4 Decisions of Committee. All actions,
interpretations, and decisions of the Committee shall be
conclusive and binding on all persons, and shall be given the
maximum possible deference allowed by law.
11.5 Administrative Expenses. All expenses incurred
in the administration of the Plan by the Committee, or otherwise,
including legal fees and expenses, shall be paid and borne by the
Employers, except any stamp duties or transfer taxes applicable
to the purchase of shares may be charged to the account of each
Participant. Any brokerage fees for the purchase of shares by a
Participant shall be paid by the Company, but brokerage fees for
the resale of shares by a Participant shall be borne by the
Participant.
11.6 Eligibility to Participate. No member of the
Committee who is also an employee of an Employer shall be
excluded from participating in the Plan if otherwise eligible,
but he or she shall not be entitled, as a member of the
Committee, to act or pass upon any matters pertaining
specifically to his or her own account under the Plan.
11.7 Indemnification. Each of the Employers shall,
and hereby does, indemnify and hold harmless the members of the
Committee and the Board, from and against any and all losses,
claims, damages or liabilities (including attorneys' fees and
amounts paid, with the approval of the Board, in settlement of
any claim) arising out of or resulting from the implementation of
a duty, act or decision with respect to the Plan, so long as such
duty, act or decision does not involve gross negligence or
willful misconduct on the part of any such individual.
SECTION 12
AMENDMENT, TERMINATION, AND DURATION
12.1 Amendment, Suspension, or Termination. The
Board, in its sole discretion, may amend or terminate the Plan,
or any part thereof, at any time and for any reason. If the Plan
is terminated, the Board, in its discretion, may elect to
terminate all outstanding options either immediately or upon
completion of the purchase of shares on the next Purchase Date,
or may elect to permit options to expire in accordance with their
terms (and participation to continue through such expiration
dates). If the options are terminated prior to expiration, all
amounts then credited to Participants' accounts which have not
been used to purchase shares shall be returned to the
Participants (without interest) as soon as administratively
practicable.
12.2 Duration of the Plan. The Plan shall commence on
the date specified herein, and subject to Section 12.1 (regarding
the Board's right to amend or terminate the Plan), shall remain
in effect thereafter.
SECTION 13
GENERAL PROVISIONS
13.1 Participation by Subsidiaries. One or more
Subsidiaries of the Company may become participating Employers by
adopting the Plan and obtaining approval for such adoption from
the Board. By adopting the Plan, a Subsidiary shall be deemed to
agree to all of its terms, including (but not limited to) the
provisions granting exclusive authority (a) to the Board to amend
the Plan, and (b) to the Committee to administer and interpret
the Plan. Any Subsidiary may terminate its participation in the
Plan at any time. The liabilities incurred under the Plan to the
Participants employed by each Employer shall be solely the
liabilities of that Employer, and no other Employer shall be
liable for benefits accrued by a Participant during any period
when he or she was not employed by such Employer.
13.2 Inalienability. In no event may either a
Participant, a former Participant or his or her Beneficiary,
spouse or estate sell, transfer, anticipate, assign, hypothecate,
or otherwise dispose of any right or interest under the Plan; and
such rights and interests shall not at any time be subject to the
claims of creditors nor be liable to attachment, execution or
other legal process. Accordingly, for example, a Participant's
interest in the Plan is not transferable pursuant to a domestic
relations order. The preceding shall not affect the
Participant's right to direct the sale or transfer of shares that
have been allocated to the Participant's account at the broker
designated by the Committee (subject to the provisions of the
Plan).
13.3 Severability. In the event any provision of the
Plan shall be held illegal or invalid for any reason, the
illegality or invalidity shall not affect the remaining parts of
the Plan, and the Plan shall be construed and enforced as if the
illegal or invalid provision had not been included.
13.4 Requirements of Law. The granting of options and
the issuance of shares shall be subject to all applicable laws,
rules, and regulations, and to such approvals by any governmental
agencies or securities exchanges as the Committee may determine
are necessary or appropriate.
13.5 No Enlargement of Employment Rights. Neither the
establishment or maintenance of the Plan, the granting of
options, the purchase of shares, nor any action of any Employer
or the Committee, shall be held or construed to confer upon any
individual any right to be continued as an employee of the
Employer nor, upon dismissal, any right or interest in any
specific assets of the Employers other than as provided in the
Plan. Each Employer expressly reserves the right to discharge
any employee at any time, with or without cause.
13.6 Apportionment of Costs and Duties. All acts
required of the Employers under the Plan may be performed by the
Company for itself and its Subsidiary, and the costs of the Plan
may be equitably apportioned by the Committee among the Company
and the other Employers. Whenever an Employer is permitted or
required under the terms of the Plan to do or perform any act,
matter or thing, it shall be done and performed by any officer or
employee of the Employers who is thereunto duly authorized by the
Employers.
13.7 Construction and Applicable Law. The Plan is
intended to qualify as an "employee stock purchase plan" within
the meaning of Section 423 of the Code. Any provision of the
Plan which is inconsistent with Section 423 of the Code shall
without further act or amendment by the Company or the Board be
reformed to comply with the requirements of Section 423. The provisions
of the Plan shall be construed, administered and enforced in
accordance with such Section and with the laws of the State of
California (excluding California's conflict of laws provisions).
13.8 Captions. The captions contained in and the
table of contents prefixed to the Plan are inserted only as a
matter of convenience, and in no way define, limit, enlarge or
describe the scope or intent of the Plan nor in any way shall
affect the construction of any provision of the Plan.
EXECUTION
IN WITNESS WHEREOF, The Gap, Inc., by its duly
authorized officer, has executed this Plan on the date indicated
below.
THE GAP, INC.
Dated: October 13, 1994 By /s/ Anne B. Gust
Title: Senior Vice President - General
Counsel and Secretary
EXHIBIT 5.1
OPINION OF ORRICK, HERRINGTON & SUTCLIFFE
October 13, 1994
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.
Employee Stock Purchase Plan (the "Plan"), of up to 2,000,000
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 2,000,000 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
Deloitte & Touche LLP
50 Fremont Street Telephone: (415)247-4000
San Francisco, California 94105-2230 Facsimile: (415)247-4329
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of The Gap, Inc. on Form S-8 of our reports dated March 3, 1994, appearing
in and incorporated by reference in the Annual Report on Form 10-K of The
Gap, Inc. for the year ended January 29, 1994.
/s/ Deloitte & Touche LLP
San Francisco, California
October 13, 1994
EXHIBIT 24.1
POWER OF ATTORNEY OF DIRECTORS
KNOW BY ALL PERSONS BY THESE PRESENTS:
Each of the undersigned hereby constitutes and appoints
Donald G. Fisher, and Anne B. Gust, and each of them with power
to act alone, his or her true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for
him or her and in his or her name, place and stead, in any and
all capacities, to sign a Registration Statement or Registration
Statements on Form S-8 Relating to 2,000,000 shares of common
stock issuable under The Gap, Inc. Employee Stock Purchase Plan,
and any and all amendments of such Registration Statements,
including post-effective amendments, and to file the same,
together with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto such attorney-in-fact full power and authority to do and
perform each and every act and thing requisite and necessary to
be done in and about the premises hereof, as fully to all intents
and purposes as he or she might do or could do in person, thereby
ratifying and confirming all that said attorney-in-fact or his or
her substitutes may lawfully do or cause to be done by virtue
hereof.
/s/ John G. Bowes Date: October 5, 1994
John G. Bowes
/s/ Millard S. Drexler Date: October 7, 1994
Millard S. Drexler
/s/ Donald G. Fisher Date: October 13, 1994
Donald G. Fisher
/s/ Doris F. Fisher Date: October 13, 1994
Doris F. Fisher
/s/ Robert J. Fisher Date: October 10, 1994
Robert J. Fisher
/s/ William A. Hasler Date: October 7, 1994
William A. Hasler
/s/ John M. Lillie Date: October 6, 1994
John M. Lillie
/s/ Charles R. Schwab Date: October 7, 1994
Charles R. Schwab
/s/ Brooks Walker, Jr. Date: October 6, 1994
Brooks Walker, Jr.
