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).
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
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
