Exhibit 10.2
AMENDMENT
TO
THE GAP, INC. NONEMPLOYEE
DIRECTOR RETIREMENT PLAN
WHEREAS, The Gap, Inc. (the
“Company”) maintains The Gap, Inc. Nonemployee Director
Retirement Plan (the “Plan”), effective
October 27, 1992; and
WHEREAS, it now is considered
desirable to amend the Plan, to reflect the resolution of the
Corporate Governance Committee on January 29, 1997 to freeze
the amount of annual payment at the annual retainer amount as of
January 28, 1997, to reflect Corporate Governance Guidelines
adopted by the Board of the Company on May 19, 1998, that
pertained to nonemployee director retirement, and to reflect
updates to the Plan in accordance with the American Jobs Creation
Act of 2004 (the “Jobs Act”) and section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”),
and consistent with published Internal Revenue Service
(“IRS”) guidance, including proposed and final IRS
regulations under section 409A of the Code;
NOW, THEREFORE, IT IS RESOLVED that,
pursuant to the power reserved to the Company under
Section 5.1 of the Plan, the Plan is hereby amended in the
following particulars:
1. Effective as of January 1,
2008, by adding the following new paragraph to the Plan immediately
preceding Section 1 thereof:
“The Plan is designed to
comply with the American Jobs Creation Act of 2004, as amended (the
‘Jobs Act’), and section 409A of the Code. Accordingly,
effective January 1, 2008, the Plan is hereby amended, as set
forth herein, to conform to the requirements of the Jobs Act and
section 409A of the Code, and final Treasury Regulations issued
thereunder, with respect to Non-Grandfathered amounts under
the
Plan. Prior to January 1, 2008,
it is intended that the Plan be interpreted according to a good
faith interpretation of the Jobs Act and section 409A of the Code,
and consistent with published guidance thereunder, including,
without limitation, IRS Notice 2005-1 and the proposed and final
Treasury Regulations under section 409A of the Code. Treatment of
amounts deferred under the Plan pursuant to and in accordance with
any transition rules provided under all IRS published guidance and
other applicable authorities in connection with the Jobs Act or
section 409A of the Code, shall be expressly authorized hereunder
and shall be administered in accordance with procedures established
by the Company. In the event of any inconsistency between the terms
of the Plan and the Jobs Act or section 409A of the Code with
respect to Non-Grandfathered amounts, the terms of the Jobs Act and
section 409A of the Code shall prevail and govern.
‘Grandfathered Amounts’ shall mean the benefits accrued
under the Plan by Participants who had terminated service with the
Company as of December 31, 2004, the right to which was earned
and vested (within the meaning of Treasury Regulation
§1.409A-6(a)(2)) as of December 31, 2004, determined by
reference to the terms of the Plan in effect as of October 3,
2004, but only to the extent such Plan terms have not been
materially modified (within the meaning of Treasury Regulation
§1.409A-6(a)(4)) after October 3, 2004.
‘Non-Grandfathered Amounts’ shall mean the benefits
accrued under the Plan by Participants who terminate service with
the Company on or after December 31, 2004. By becoming a
Participant and making deferrals under this Plan, each Participant
agrees to be bound by the provisions of the Plan and the
determinations of the Company hereunder.”
2. Effective as of May 19,
1998, by adding the following sentence to Section 2.1 of the
Plan, immediately following the first sentence thereof:
“Effective May 19, 1998,
the
