Edgar Filing: GAP INC

As filed with the Securities and Exchange Commission on June 13, 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. Executive Deferred Compensation 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

Proposed Proposed
maximum maximum
Title of offering aggregate
securities to Amount to price per offering Amount of
be registered be registered share* price registration fee*

Deferred Compensation $51,000,000 100% $51,000,000 $4,692
Obligations**

* Estimated solely for the purpose of calculating the registration fee.

** The Obligations are unsecured obligations of The Gap, Inc. to pay deferred
compensation in the future in accordance with the terms of The Gap, Inc.
Executive Deferred Compensation Plan, as amended.

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

The securities being registered represent obligations (the "Obligations") of the
Company to pay deferred compensation in the future in accordance with the terms
of the Gap Inc. Executive Deferred Compensation Plan, as amended (the "Plan").

The Obligations are general unsecured obligations of the Company to pay deferred
compensation in the future according to the terms of the Plan from the general
assets of the Company, and rank equally with other unsecured and unsubordinated
indebtedness of the Company.

The amount of eligible compensation to be deferred by each participant is
determined in accordance with the terms of the Plan based on elections by the
participant. Amounts credited to a participant's Plan account are credited with
deemed investment returns equal to the experience of selected investment funds
offered under the Plan and elected by the participant. The Obligations are
payable upon a participant's termination of employment or on a date or dates
selected by the participant in accordance with the terms of the Plan, subject to
exceptions for in-service withdrawals, death or termination of employment prior
to age 50. The Obligations generally are payable in the form of a lump-sum
distribution or in installments, at the election of the participant made in
accordance with the terms of the Plan.

Participants or beneficiaries may not sell, transfer, anticipate, assign,
hypothecate or otherwise dispose of any right or interest in the Plan. A
participant may designate one or more beneficiaries to receive any portion of
Obligations payable in the event of the participant's death.

The Company may pay all or a part of a participant's vested Obligations as an
in-service withdrawal. If an in-service withdrawal is paid, the Company will
suspend a participant's deferral election prospectively for a period of 12
months and withhold 10% of the amount of the in-service withdrawal. The Company
also reserves the right to amend or terminate the Plan at

any time and for any reason including an amendment that would accelerate the
payment of Obligations.

The Obligations are not convertible into any other security of the Company. The
Obligations will not have the benefit of a negative pledge or any other
affirmative or negative covenant on the part of the Company. No trustee has been
appointed to take action with respect to the Obligations and each participant in
the Plan will be responsible for enforcing his or her own rights with respect to
the Obligations.

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 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. Executive Deferred Compensation Plan, as amended
(incorporated by reference to Exhibit 10.3 to the Registrant's Form 10-Q
for the quarter ended October 31, 1998, Commission File No. 1-7562).

4.2 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).

4.3 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).

4.4 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.

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.

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 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.

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 13th day of
June, 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
dated indicated.

Signature Title Date

Principal Executive Officer:

/s/ MILLARD S. DREXLER President and Chief Executive Officer June 13, 2002
----------------------------------
Millard S. Drexler

Principal Financial and Principal
Accounting Officer:

/s/ HEIDI KUNZ Executive Vice President and Chief June 13, 2002
---------------------------------- Financial Officer
Heidi Kunz

Directors:

* Director June 13, 2002
----------------------------------
Adrian D. P. Bellamy

/s/ MILLARD S. DREXLER Director June 13, 2002
-----------------------------------
Millard S. Drexler

* Director June 13, 2002
-----------------------------------
Donald G. Fisher

* Director June 13, 2002
-----------------------------------
Doris F. Fisher

* Director June 13, 2002
-----------------------------------
Robert J. Fisher

* Director June 13, 2002
-----------------------------------
Glenda A. Hatchett

* Director June 13, 2002
-----------------------------------
Steven P. Jobs

* Director June 13, 2002
-----------------------------------
John M. Lillie

* Director June 13, 2002
-----------------------------------
Arun Sarin

* Director June 13, 2002
-----------------------------------
Charles R. Schwab

*By: /s/ ANNE B. GUST
-----------------------
Anne B. Gust
Attorney-in-Fact

A majority of the members of the Board of Directors.