{"id":38178,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/1991-stock-option-plan-gilead-sciences-in3.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"1991-stock-option-plan-gilead-sciences-in3","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/1991-stock-option-plan-gilead-sciences-in3.html","title":{"rendered":"1991 Stock Option Plan &#8211; Gilead Sciences Inc."},"content":{"rendered":"<pre>                               GILEAD SCIENCES, INC. \n                               1991 STOCK OPTION PLAN\n\n                             ADOPTED NOVEMBER 15, 1991\n                               AMENDED APRIL 8, 1992\n                               AMENDED APRIL 21, 1993\n                              AMENDED OCTOBER 17, 1995\n                       AMENDED AND RESTATED JANUARY 22, 1998\n                               AMENDED MARCH 30, 1999\n\n                         TERMINATION DATE: OCTOBER 31, 2001\n\n\n1.   PURPOSES.\n\n     (a)  The Plan initially was adopted on November 15, 1991 and amended \nthrough October 17, 1995 (the 'Initial Plan').  The Initial Plan hereby is \namended and restated in its entirety effective as of January 22, 1998.  The \nterms of the Plan (excluding the amended provision relating to the exercise \nprice of Nonstatutory Stock Options) shall apply to all options granted \npursuant to the Initial Plan.\n\n     (b)  The purpose of the Plan is to provide a means by which selected \nEmployees and Directors of, and Consultants to, the Company and its \nAffiliates may be given an opportunity to purchase stock of the Company. \n\n     (c)  The Company, by means of the Plan, seeks to retain the services of \npersons who are now Employees of or Consultants to the Company, to secure and \nretain the services of new Employees and Consultants, and to provide \nincentives for such persons to exert maximum efforts for the success of the \nCompany. \n\n     (d)  The Company intends that the Options issued under the Plan shall, \nin the discretion of the Board or any Committee to which responsibility for \nadministration of the Plan has been delegated pursuant to subsection 3(c), be \neither Incentive Stock Options or Nonstatutory Stock Options.  All Options \nshall be separately designated Incentive Stock Options or Nonstatutory Stock \nOptions at the time of grant, and in such form as issued pursuant to Section \n6, and a separate certificate or certificates will be issued for shares \npurchased on exercise of each type of Option.\n\n2.   DEFINITIONS.\n\n     (a)  'AFFILIATE' means any parent corporation or subsidiary corporation \nof the Company, whether now or hereafter existing, as those terms are defined \nin Sections 424(e) and (f) respectively, of the Code.  \n\n     (b)  'BOARD' means the Board of Directors of the Company.\n\n\n                                      -1-\n\n\n\n     (c)  'CODE' means the Internal Revenue Code of 1986, as amended.\n\n     (d)  'COMMITTEE' means a Committee appointed by the Board in accordance \nwith subsection 3(c) of the Plan.\n\n     (e)  'COMPANY' means Gilead Sciences, Inc., a Delaware  corporation.\n\n     (f)  'CONSULTANT' means any person, including an advisor, engaged by the \nCompany or an Affiliate to render services and who is compensated for such \nservices, provided that the term 'Consultant' shall not include Directors who \nare paid only a director's fee by the Company or who are not otherwise \ncompensated by the Company for their services as Directors.  The term \n'Consultant' shall include a member of the Board of Directors of an Affiliate.\n\n     (g)  'CONTINUOUS SERVICE' (formerly designated as 'CONTINUOUS STATUS AS \nAN EMPLOYEE OR CONSULTANT') means that the Optionee's service with the \nCompany or its Affiliates is not interrupted or terminated.  The Optionee's \nContinuous Service shall not be deemed to have terminated merely because of a \nchange in the capacity in which the Optionee renders service to the Company \nor its Affiliates or a change in the entity for which the Optionee renders \nsuch service, provided that there is no interruption or termination of the \nOptionee's Continuous Service.  For example, a change in status from an \nEmployee of the Company to a Consultant or Director of the Company or a \nmember of the Board of Directors of an Affiliate will not constitute an \ninterruption of Continuous Service.  The Board or the chief executive officer \nof the Company, in that party's sole discretion, may determine whether \nContinuous Service shall be considered interrupted in the case of any leave \nof absence approved by the Board or the chief executive officer of the \nCompany, including sick leave, military leave, or any other personal leave.\n\n     (h)  'COVERED EMPLOYEE' means the chief executive officer and the four \n(4) other highest compensated officers of the Company for whom total \ncompensation is required to be reported to shareholders under the Exchange \nAct, as determined for purposes of Section 162(m) of the Code.\n\n     (i)  'DIRECTOR' means a member of the Board.\n\n     (j)  'DISABILITY' means total and permanent disability as defined in \nSection 22(e)(3) of the Code.\n\n     (k)  'EMPLOYEE' means any person, including Officers and Directors, \nemployed by the Company or any Affiliate of the Company.  Neither service as \na Director nor payment of a director's fee by the Company shall be sufficient \nto constitute 'employment' by the Company.\n\n     (l)  'EXCHANGE ACT' means the Securities Exchange Act of 1934, as \namended.\n\n     (m)  'FAIR MARKET VALUE' means, as of any date, the value of the common \nstock of the Company determined as follows:\n\n\n                                      -2-\n\n\n\n          (i)   If the common stock is listed on any established stock \nexchange or a national market system, including without limitation the \nNational Market System of the National Association of Securities Dealers, \nInc. Automated Quotation ('NASDAQ') System, the Fair Market Value of a share \nof common stock shall be the closing sales price for such stock (or the \nclosing bid, if no sales were reported) as quoted on such system or exchange \n(or the exchange with the greatest volume of trading in common stock) on the \nlast market trading day prior to the day of determination, as reported in the \nWall Street Journal or such other source as the Board deems reliable;\n\n          (ii)  If the common stock is quoted on the NASDAQ System (but not \non the National Market System thereof) or is regularly quoted by a recognized \nsecurities dealer but selling prices are not reported, the Fair Market Value \nof a share of common stock shall be the mean between the high bid and high \nasked prices for the common stock on the last market trading day prior to the \nday of determination, as reported in the Wall Street Journal or such other \nsource as the Board deems reliable;\n\n          (iii) In the absence of an established market for the common stock, \nthe Fair Market Value shall be determined in good faith by the Board.\n\n     (n)  'INCENTIVE STOCK OPTION' means an Option intended to qualify as an \nincentive stock option within the meaning of Section 422 of the Code and the \nregulations promulgated thereunder.\n\n     (o)  'NON-EMPLOYEE DIRECTOR' means a Director who either (i) is not a \ncurrent Employee or Officer of the Company or its parent or subsidiary, does \nnot receive compensation (directly or indirectly) from the Company or its \nparent or subsidiary for services rendered as a consultant or in any capacity \nother than as a Director (except for an amount as to which disclosure would \nnot be required under Item 404(a) of Regulation S-K promulgated pursuant to \nthe Securities Act), does not possess an interest in any other transaction as \nto which disclosure would be required under Item 404(a) of Regulation S-K, \nand is not engaged in a business relationship as to which disclosure would be \nrequired under Item 404(b) of Regulation S-K; or (ii) is otherwise considered \na 'non-employee director' for purposes of Rule 16b-3.\n\n     (p)  'NONSTATUTORY STOCK OPTION' means an Option not intended to qualify \nas an Incentive Stock Option.\n\n     (q)  'OFFICER' means a person who is an officer of the Company within \nthe meaning of Section 16 of the Exchange Act and the rules and regulations \npromulgated thereunder.\n\n     (r)  'OPTION' means a stock option granted pursuant to the Plan.\n\n     (s)  'OPTION AGREEMENT' means a written agreement between the Company \nand an Optionee evidencing the terms and conditions of an individual Option \ngrant. The Option Agreement is subject to the terms and conditions of the \nPlan.\n\n\n                                      -3-\n\n\n\n     (t)  'OPTIONED STOCK' means the common stock of the Company subject to \nan Option. \n\n     (u)  'OPTIONEE' means a person who holds an outstanding Option.\n\n     (v)  'OUTSIDE DIRECTOR' means a Director who either (i) is not a current \nemployee of the Company or an 'affiliated corporation' (within the meaning of \nthe Treasury regulations promulgated under Section 162(m) of the Code), is \nnot a former employee of the Company or an 'affiliated corporation' receiving \ncompensation for prior services (other than benefits under a tax qualified \npension plan), was not an officer of the Company or an 'affiliated \ncorporation' at any time, and is not currently receiving direct or indirect \nremuneration from the Company or an 'affiliated corporation' for services in \nany capacity other than as a Director, or (ii) is otherwise considered an \n'outside director' for purposes of Section 162(m) of the Code.\n\n     (w)  'PLAN' means this 1991 Stock Option Plan.\n\n     (x)  'RULE 16b-3' means Rule 16b-3 of the Exchange Act or any successor \nto Rule 16b-3, as in effect when discretion is being exercised with respect \nto the Plan.\n\n3.   ADMINISTRATION.\n\n     (a)  The Board shall administer the Plan unless and until the Board \ndelegates administration to a Committee, as provided in subsection 3(c).  \n\n     (b)  The Board shall have the power, subject to, and within the \nlimitations of, the express provisions of the Plan:\n\n          (i)   To determine from time to time which of the persons eligible \nunder the Plan shall be granted Options; when and how the Option shall be \ngranted; whether the Option will be an Incentive Stock Option or a \nNonstatutory Stock Option; the provisions of each Option granted (which need \nnot be identical), including the time or times such Option may be exercised \nin whole or in part; and the number of shares for which an Option shall be \ngranted to each such person.\n\n          (ii)  To construe and interpret the Plan and Options granted under \nit, and to establish, amend and revoke rules and regulations for its \nadministration. The Board, in the exercise of this power, may correct any \ndefect, omission or inconsistency in the Plan or in any Option Agreement, in \na manner and to the extent it shall deem necessary or expedient to make the \nPlan fully effective.\n\n          (iii) To amend the Plan as provided in Section 11.\n\n          (iv)  Generally, to exercise such powers and to perform such acts \nas the Board deems necessary or expedient to promote the best interests of \nthe Company.\n\n\n                                      -4-\n\n\n\n     (c)  The Board may delegate administration of the Plan to a Committee or \nCommittees of one or more members of the Board.  In the discretion of the \nBoard, a Committee may consist solely of two or more Outside Directors, in \naccordance with Code Section 162(m), or solely of two or more Non-Employee \nDirectors, in accordance with Rule 16b-3 of the Exchange Act.  If \nadministration is delegated to a Committee, the Committee shall have, in \nconnection with the administration of the Plan, the powers theretofore \npossessed by the Board (and references in this Plan to the Board shall \nthereafter be to the Committee), subject, however, to such resolutions, not \ninconsistent with the provisions of the Plan, as may be adopted from time to \ntime by the Board.  The Board may abolish the Committee at any time and \nrevest in the Board the administration of the Plan. Within the scope of this \nauthority, the Board or the Committee may delegate to a committee of one or \nmore members of the Board the authority to grant Options to eligible persons \nwho (1) are not then subject to Section 16 of the Exchange Act and\/or (2) are \neither (i) not then Covered Employees and are not expected to be Covered \nEmployees at the time of recognition of income resulting from such Option, or \n(ii) not persons with respect to whom the Company wishes to comply with \nSection 162(m) of the Code.\n\n4.   SHARES SUBJECT TO THE PLAN.\n\n     (a)  Subject to the provisions of Section 10 relating to adjustments \nupon changes in stock, the stock that may be sold pursuant to Options shall \nnot exceed in the aggregate Ten Million (10,000,000) shares of the Company's \ncommon stock.  If any Option shall for any reason expire or otherwise \nterminate, in whole or in part, without having been exercised in full, the \nstock not purchased under such Option shall revert to again become available \nfor issuance under the Plan. \n\n     (b)  The stock subject to the Plan may be unissued shares or reacquired \nshares, bought on the market or otherwise. \n\n5.   ELIGIBILITY.\n\n     (a)  Incentive Stock Options may be granted only to Employees. \nNonstatutory Stock Options may be granted to Employees, Directors and \nConsultants.  \n\n     (b)  No person shall be eligible for the grant of an Incentive Stock \nOption if, at the time of grant, such person owns (or is deemed to own \npursuant to Section 424(d) of the Code) stock possessing more than ten \npercent (10%) of the total combined voting power of all classes of stock of \nthe Company or of any of its Affiliates unless the exercise price of such \nOption is at least one hundred ten percent (110%) of the Fair Market Value of \nsuch stock at the date of grant and the Option is not exercisable after the \nexpiration of five (5) years from the date of grant. \n\n     (c)  Subject to the provisions of Section 10 relating to adjustments \nupon changes in stock, no person shall be eligible to be granted Options \ncovering more than Five Hundred Thousand (500,000) shares of the Company's \ncommon stock in any calendar year.\n\n\n                                      -5-\n\n\n\n6.   OPTION PROVISIONS.\n\n     Each Option shall be in such form and shall contain such terms and \nconditions as the Board shall deem appropriate.  The provisions of separate \nOptions need not be identical, but each Option shall include (through \nincorporation of provisions hereof by reference in the Option or otherwise) \nthe substance of each of the following provisions: \n\n     (a)  TERM.  No Option shall be exercisable after the expiration of ten \n(10) years from the date it was granted. \n\n     (b)  PRICE.  \n\n          (i)   EXERCISE PRICE.  The exercise price of each Incentive Stock \nOption and each Nonstatutory Stock Option shall be not less than one hundred \npercent (100%) of the fair market value of the stock subject to the Option on \nthe date the Option is granted.\n\n          (ii)  NO AUTHORITY TO REPRICE.  Without the consent of the \nstockholders of the Company, the Board shall have no authority to effect (a) \nthe repricing of any outstanding Options under the Plan and\/or (b) the \ncancellation of any outstanding Options under the Plan and the grant in \nsubstitution therefor of new Options under the Plan covering the same or \ndifferent numbers of shares of Common Stock.\n\n     (c)   CONSIDERATION.  The purchase price of stock acquired pursuant to \nan Option shall be paid, to the extent permitted by applicable statutes and \nregulations, either (i) in cash at the time the Option is exercised, or (ii) \nat the discretion of the Board or the Committee, at the time of the grant of \nthe Option, (A) by delivery to the Company of other common stock of the \nCompany, (B) according to a deferred payment arrangement, except that payment \nof the common stock's 'par value' (as defined in the Delaware General \nCorporation Law) shall not be made by deferred payment or other arrangement \n(which may include, without limiting the generality of the foregoing, the use \nof other common stock of the Company) with the person to whom the Option is \ngranted or to whom the Option is transferred pursuant to subsection 6(d), or \n(C) in any other form of legal consideration that may be acceptable to the \nBoard.\n\n     In the case of any deferred payment arrangement, interest shall be \ncompounded at least annually and shall be charged at the minimum rate of \ninterest necessary to avoid the treatment as interest, under any applicable \nprovisions of the Code, of any amounts other than amounts stated to be \ninterest under the deferred payment arrangement.\n\n     (d)  TRANSFERABILITY.  An Incentive Stock Option shall not be \ntransferable except by will or by the laws of descent and distribution, and \nshall be exercisable during the lifetime of the person to whom the Option is \ngranted only by such person. A Nonstatutory Stock Option but not an Incentive \nStock Option, may be transferred to the extent provided in the Option \nAgreement; provided that if the Option Agreement does not expressly permit \nthe transfer of a Nonstatutory Stock Option, the Nonstatutory Stock Option \nshall not be transferable except by will, by the laws of descent and \ndistribution and shall be exercisable during the lifetime of the person to \nwhom the Option is granted only by such person. The person to whom the Option \nis granted may, by \n\n\n                                      -6-\n\n\n\ndelivering written notice to the Company, in a form satisfactory to the \nCompany, designate a third party who, in the event of the death of the \nOptionee, shall thereafter be entitled to exercise the Option.\n\n     (e)  VESTING.  The total number of shares of stock subject to an Option \nmay, but need not, be allotted in periodic installments (which may, but need \nnot, be equal).  The Option Agreement may provide that from time to time \nduring each of such installment periods, the Option may become exercisable \n('vest') with respect to some or all of the shares allotted to that period, \nand may be exercised with respect to some or all of the shares allotted to \nsuch period and\/or any prior period as to which the Option became vested but \nwas not fully exercised.  During the remainder of the term of the Option (if \nits term extends beyond the end of the installment periods), the option may \nbe exercised from time to time with respect to any shares then remaining \nsubject to the Option. The Option may be subject to such other terms and \nconditions on the time or times when it may be exercised (which may be based \non performance or other criteria) as the Board may deem appropriate.  The \nprovisions of this subsection 6(e) are subject to any Option provisions \ngoverning the minimum number of shares as to which an Option may be \nexercised. \n\n     (f)  SECURITIES LAW COMPLIANCE.  The Company may require any Optionee, \nor any person to whom an Option is transferred under subsection 6(d), as a \ncondition of exercising any such Option, (1) to give written assurances \nsatisfactory to the Company as to the Optionee's knowledge and experience in \nfinancial and business matters and\/or to employ a purchaser representative \nreasonably satisfactory to the Company who is knowledgeable and experienced \nin financial and business matters, and that he or she is capable of \nevaluating, alone or together with the purchaser representative, the merits \nand risks of exercising the Option; and (2) to give written assurances \nsatisfactory to the Company stating that such person is acquiring the stock \nsubject to the Option for such person's own account and not with any present \nintention of selling or otherwise distributing the stock.  These \nrequirements, and any assurances given pursuant to such requirements, shall \nbe inoperative if (i) the issuance of the shares upon the exercise of the \nOption has been registered under a then currently effective registration \nstatement under the Securities Act of 1933, as amended (the 'Securities \nAct'), or (ii) as to any particular requirement, a determination is made by \ncounsel for the Company that such requirement need not be met in the \ncircumstances under the then applicable securities laws.  The Company may \nrequire the Optionee to provide such other representations, written \nassurances, or information which the Company shall determine is necessary, \ndesirable or appropriate to comply with applicable securities and other laws \nas a condition of granting an Option to such Optionee or permitting the \nOptionee to exercise such Option.  The Company may, upon advice of counsel to \nthe Company, place legends on stock certificates issued under the Plan as \nsuch counsel deems necessary or appropriate in order to comply with \napplicable securities laws, including, but not limited to, legends \nrestricting the transfer of the stock.\n\n     (g)  TERMINATION OF EMPLOYMENT OR CONSULTING RELATIONSHIP.  In the event \nan Optionee's Continuous Service terminates (other than upon the Optionee's \ndeath or Disability), the Optionee may exercise his or her Option, but only \nwithin such period of time as is determined by the Board, and only to the \nextent that the Optionee was entitled to exercise it at \n\n\n                                      -7-\n\n\n\nthe date of termination (but in no event later than the expiration of the \nterm of such Option as set forth in the Option Agreement).  In the case of an \nIncentive Stock Option, the Board shall determine such period of time (in no \nevent to exceed ninety (90) days from the date of termination) when the \nOption is granted.  If, at the date of termination, the Optionee is not \nentitled to exercise his or her entire Option, the shares covered by the \nunexercisable portion of the Option shall revert to the Plan.  If, after \ntermination, the Optionee does not exercise his or her Option within the time \nspecified in the Option Agreement, the Option shall terminate, and the shares \ncovered by such Option shall revert to the Plan.\n\n     (h)  DISABILITY OF OPTIONEE.  In the event an Optionee's Continuous \nService terminates as a result of the Optionee's Disability, the Optionee may \nexercise his or her Option, but only within twelve (12) months from the date \nof such termination (or such shorter period specified in the Option \nAgreement), and only to the extent that the Optionee was entitled to exercise \nit at the date of such termination (but in no event later than the expiration \nof the term of such Option as set forth in the Option Agreement).  If, at the \ndate of termination, the Optionee is not entitled to exercise his or her \nentire Option, the shares covered by the unexercisable portion of the Option \nshall revert to the Plan. If, after termination, the Optionee does not \nexercise his or her Option within the time specified herein, the Option shall \nterminate, and the shares covered by such Option shall revert to the Plan.\n\n     (i)  DEATH OF OPTIONEE.  In the event of the death of an Optionee, the \nOption may be exercised, at any time within twelve (12) months following the \ndate of death (or such shorter period specified in the Option Agreement) (but \nin no event later than the expiration of the term of such Option as set forth \nin the Option Agreement), by the Optionee's estate or by a person who \nacquired the right to exercise the Option by bequest or inheritance, but only \nto the extent the Optionee was entitled to exercise the Option at the date of \ndeath.  If, at the time of death, the Optionee was not entitled to exercise \nhis or her entire Option, the shares covered by the unexercisable portion of \nthe Option shall revert to the Plan.  If, after death, the Optionee's estate \nor a person who acquired the right to exercise the Option by bequest or \ninheritance does not exercise the Option within the time specified herein, \nthe Option shall terminate, and the shares covered by such Option shall \nrevert to the Plan.\n\n     (j)  EARLY EXERCISE.  The Option may, but need not, include a provision \nwhereby the Optionee may elect at any time while an Employee or Consultant to \nexercise the Option as to any part or all of the shares subject to the Option \nprior to the full vesting of the Option.  Any unvested shares so purchased \nmay be subject to a repurchase right in favor of the Company or to any other \nrestriction the Board determines to be appropriate. \n\n     (k)  WITHHOLDING.  To the extent provided by the terms of an Option \nAgreement, the Optionee may satisfy any federal, state or local tax \nwithholding obligation relating to the exercise of such Option by any of the \nfollowing means or by a combination of such means:  (1) tendering a cash \npayment; (2) authorizing the Company to withhold shares from the shares of \nthe common stock otherwise issuable to the Optionee as a result of the \nexercise of the Option; or (3) delivering to the Company owned and \nunencumbered shares of the common stock of the Company.\n\n\n                                      -8-\n\n\n\n7.   COVENANTS OF THE COMPANY.\n\n     (a)  During the terms of the Options, the Company shall keep available \nat all times the number of shares of stock required to satisfy such Options. \n\n     (b)  The Company shall seek to obtain from each regulatory commission or \nagency having jurisdiction over the Plan such authority as may be required to \nissue and sell shares of stock upon exercise of the Options; provided, \nhowever, that this undertaking shall not require the Company to register \nunder the Securities Act either the Plan, any Option or any stock issued or \nissuable pursuant to any such Option.  If, after reasonable efforts, the \nCompany is unable to obtain from any such regulatory commission or agency the \nauthority which counsel for the Company deems necessary for the lawful \nissuance and sale of stock under the Plan, the Company shall be relieved from \nany liability for failure to issue and sell stock upon exercise of such \nOptions unless and until such authority is obtained. \n\n8.   USE OF PROCEEDS FROM STOCK.\n\n     Proceeds from the sale of stock pursuant to Options shall constitute \ngeneral funds of the Company.\n\n9.   MISCELLANEOUS.\n\n     (a)  The Board shall have the power to accelerate the time at which an \nOption may first be exercised or the time during which an Option or any part \nthereof will vest pursuant to subsection 6(e), notwithstanding the provisions \nin the Option stating the time at which it may first be exercised or the time \nduring which it will vest. \n\n     (b)  Neither an Optionee nor any person to whom an Option is transferred \nunder subsection 6(d) shall be deemed to be the holder of, or to have any of \nthe rights of a holder with respect to, any shares subject to such Option \nunless and until such person has satisfied all requirements for exercise of \nthe Option pursuant to its terms. \n\n     (c)  Nothing in the Plan or any instrument executed or Option granted \npursuant thereto shall confer upon any Employee, Consultant or Optionee any \nright to continue in the employ of the Company or any Affiliate (or to \ncontinue acting as a Consultant) or shall affect the right of the Company or \nany Affiliate to terminate the employment or relationship as a Consultant of \nany Employee, Consultant or Optionee with or without cause.   \n\n     (d)  To the extent that the aggregate Fair Market Value (determined at \nthe time of grant) of stock with respect to which Incentive Stock Options are \nexercisable for the first time by any Optionee during any calendar year under \nall plans of the Company and its Affiliates exceeds one hundred thousand \ndollars ($100,000), the Options or portions thereof which exceed such limit \n(according to the order in which they were granted) shall be treated as \nNonstatutory Stock Options.\n\n\n                                      -9-\n\n\n\n10.  ADJUSTMENTS UPON CHANGES IN STOCK.\n\n     (a)  If any change is made in the stock subject to the Plan, or subject \nto any Option (through merger, consolidation, reorganization, \nrecapitalization, stock dividend, dividend in property other than cash, stock \nsplit, liquidating dividend, combination of shares, exchange of shares, \nchange in corporate structure or otherwise), the Plan will be appropriately \nadjusted in the class(es) and maximum number of shares subject to the Plan \npursuant to subsection 4(a) and the maximum number of shares subject to award \nto any person during any calendar year period pursuant to subsection 5(d), \nand the outstanding Options will be appropriately adjusted in the class(es) \nand number of shares and price per share of stock subject to such outstanding \nOptions. \n\n     (b)  In the event of:  (1) a dissolution or liquidation of the Company; \n(2) a merger or consolidation in which the Company is not the surviving \ncorporation; (3) a reverse merger in which the Company is the surviving \ncorporation but the shares of the Company's common stock outstanding \nimmediately preceding the merger are converted by virtue of the merger into \nother property, whether in the form of securities, cash or otherwise; or (4) \nany other capital reorganization in which more than fifty percent (50%) of \nthe shares of the Company entitled to vote are exchanged, then, at the sole \ndiscretion of the Board and to the extent permitted by applicable law:  (i) \nany surviving corporation shall assume any Options outstanding under the Plan \nor shall substitute similar Options for those outstanding under the Plan, \n(ii) the time during which such Options may be exercised shall be accelerated \nand the Options terminated if not exercised prior to such event, or (iii) \nsuch Options shall continue in full force and effect.  \n\n     (c)  Notwithstanding any other provisions of this Plan to the contrary, \nif an event occurs as specified in subsection 10(b) (a 'Change in Control') \nand if within one (1) month before or thirteen (13) months after the date of \nsuch Change in Control the Continuous Service of an Optionee terminates due \nto an involuntary termination (not including death or Disability) without \nCause (as such term is defined below) or a voluntary termination by the \nOptionee due to a Constructive Termination (as such term is defined below), \nthen the vesting and exercisability of all Options held by such Optionee \nshall be accelerated, or any reacquisition or repurchase rights held by the \nCompany with respect to an option shall lapse, as follows.  With respect to \nthose Options held by an Optionee at the time of such termination, one \nhundred percent (100%) of the unvested shares covered by such Options shall \nvest and become exercisable (or reacquisition or repurchase rights held by \nthe Company shall lapse with respect to one hundred percent (100%) of the \nshares still subject to such rights, as appropriate) as of the date of such \ntermination.  Notwithstanding the foregoing, however, if such potential \nacceleration of the vesting and exercisability of Options (or lapse of \nreacquisition or repurchase rights held by the Company with respect to \nOptions) would cause a contemplated Change in Control transaction that would \notherwise be eligible to be accounted for as a 'pooling-of-interests' \ntransaction to become ineligible for such accounting treatment under \ngenerally accepted accounting principles as determined by the Company's \nindependent public accountants (the 'Accountants') prior to the Change of \nControl, such acceleration shall not occur.  \n\n     For the purposes of this subsection 10(c) only, 'Cause' means (i) \nconviction of, a guilty plea with respect to, or a plea of NOLO CONTENDERE to \na charge that an Optionee has committed a \n\n\n                                      -10-\n\n\n\nfelony under the laws of the United States or of any state or a crime \ninvolving moral turpitude, including, but not limited to, fraud, theft, \nembezzlement or any crime that results in or is intended to result in \npersonal enrichment at the expense of the Company or an Affiliate; (ii) \nmaterial breach of any agreement entered into between the Optionee and the \nCompany or an Affiliate that impairs the Company's or the Affiliate's \ninterest therein; (iii) willful misconduct, significant failure of the \nOptionee to perform the Optionee's duties, or gross neglect by the Optionee \nof the Optionee's duties; or (iv) engagement in any activity that constitutes \na material conflict of interest with the Company or any Affiliate. \n\n     For purposes of this subsection 10(c) only, 'Constructive Termination' \nmeans the occurrence of any of the following events or conditions:  (i) (A) a \nchange in the Optionee's status, title, position or responsibilities \n(including reporting responsibilities) which represents an adverse change \nfrom the Optionee's status, title, position or responsibilities as in effect \nat any time within ninety (90) days preceding the date of a Change in Control \nor at any time thereafter; (B) the assignment to the Optionee of any duties \nor responsibilities which are inconsistent with the Optionee's status, title, \nposition or responsibilities as in effect at any time within ninety (90) days \npreceding the date of a Change in Control or at any time thereafter; or (C) \nany removal of the Optionee from or failure to reappoint or reelect the \nOptionee to any of such offices or positions, except  in connection with the \ntermination of the Optionee's Continuous Service for Cause, as a result of \nthe Optionee's Disability or death or by the Optionee other than as a result \nof Constructive Termination; (ii) a reduction in the Optionee's annual base \ncompensation or any failure to pay the Optionee any compensation or benefits \nto which the Optionee is entitled within five (5) days of the date due;  \n(iii) the Company's requiring the Optionee to relocate to any place outside a \nfifty (50) mile radius of the Optionee's current work site, except for \nreasonably required travel on the business of the Company or its Affiliates \nwhich is not materially greater than such travel requirements prior to the \nChange in Control; (iv) the failure by the Company to (A) continue in effect \n(without reduction in benefit level and\/or reward opportunities) any material \ncompensation or employee benefit plan in which the Optionee was participating \nat any time within ninety (90) days preceding the date of a Change in Control \nor at any time thereafter, unless such plan is replaced with a plan that \nprovides substantially equivalent compensation or benefits to the Optionee, \nor (B) provide the Optionee with compensation and benefits, in the aggregate, \nat least equal (in terms of benefit levels and\/or reward opportunities) to \nthose provided for under each other employee benefit plan, program and \npractice in which the Optionee was participating at any time within ninety \n(90) days preceding the date of a Change in Control or at any time \nthereafter; (v) any material breach by the Company of any provision of an \nagreement between the Company and the Optionee, whether pursuant to this Plan \nor otherwise, other than a breach which is cured by the Company within \nfifteen (15) days following notice by the Optionee of such breach; or (vi) \nthe failure of the Company to obtain an agreement, satisfactory to the \nOptionee, from any successors and assigns to assume and agree to perform the \nobligations created under this Plan.\n\n     (d)  In the event that the acceleration of the vesting and \nexercisability of the Options or lapse of reacquisition or repurchase rights \nheld by the Company with respect to Options provided for in subsection 10(c) \nand benefits otherwise payable to an Optionee (i) constitute 'parachute \npayments' within the meaning of Section 280G (as it may be amended or \nreplaced) \n\n\n                                      -11-\n\n\nof the Code, and (ii) but for this subsection 10(d) would be subject to the \nexcise tax imposed by Section 4999 (as it may be amended or replaced) of the \nCode (the 'Excise Tax'), then such Optionee's benefits hereunder shall be \ndelivered to such lesser extent which would result in no portion of such \nbenefits being subject to the Excise Tax; PROVIDED, HOWEVER, that the \nbenefits hereunder shall be reduced only to the extent necessary after all \ncash amounts otherwise payable to such Optionee and which constitute \n'parachute payments' have been returned.  Unless the Company and such \nOptionee otherwise agree in writing, any determination required under this \nsubsection 10(d) shall be made in writing in good faith by the Accountants. \nFor purposes of making the calculations required by this subsection 10(d), \nthe Accountants may make reasonable assumptions and approximations concerning \napplicable taxes and may rely on reasonable, good faith interpretations \nconcerning the application of the Code.  The Company and such Optionees shall \nfurnish to the Accountants such information and documents as the Accountants \nmay reasonably request in order to make a determination under this subsection \n10(d). The Company shall bear all costs the Accountants may reasonably incur \nin connection with any calculations contemplated by this subsection 10(d).\n\n11.  AMENDMENT OF THE PLAN.\n\n     (a)  The Board at any time, and from time to time, may amend the Plan. \nHowever, except as provided in Section 10 relating to adjustments upon \nchanges in stock, no amendment shall be effective unless approved by the \nstockholders of the Company within twelve (12) months before or after the \nadoption of the amendment, where the amendment will:\n\n          (i)   Increase the number of shares reserved for options under the \nPlan; \n\n          (ii)  Effect (a) the repricing of any outstanding Options under the \nPlan and\/or (b) the cancellation of any outstanding Options under the Plan \nand the grant in substitution therefor of new Options under the Plan covering \nthe same or different numbers of shares of Common Stock; \n\n          (iii) Modify the requirements as to eligibility for participation \nin the Plan (to the extent such modification requires stockholder approval in \norder for the Plan to satisfy the requirements of Section 422 of the Code); \nor \n\n          (iv)  Modify the Plan in any other way if such modification \nrequires stockholder approval in order for the Plan to satisfy the \nrequirements of Section 422 of the Code or to comply with the requirements of \nRule 16b-3 or any Nasdaq or securities exchange listing requirements. \n\n     (b)  The Board may in its sole discretion submit any other amendment to \nthe Plan for stockholder approval, including, but not limited to, amendments \nto the Plan intended to satisfy the requirements of Section 162(m) of the \nCode and the regulations promulgated thereunder regarding the exclusion of \nperformance-based compensation from the limit on corporate deductibility of \ncompensation paid to certain executive officers.\n\n\n                                      -12-\n\n\n\n     (c)  It is expressly contemplated that the Board may amend the Plan in \nany respect the Board deems necessary or advisable to provide Optionees with \nthe maximum benefits provided or to be provided under the provisions of the \nCode and the regulations promulgated thereunder relating to Incentive Stock \nOptions and\/or to bring the Plan and\/or Incentive Stock Options granted under \nit into compliance therewith. \n\n     (d)  Rights and obligations under any Option granted before amendment of \nthe Plan shall not be altered or impaired by any amendment of the Plan unless \n(i) the Company requests the consent of the person to whom the Option was \ngranted and (ii) such person consents in writing. \n\n12.  TERMINATION OR SUSPENSION OF THE PLAN.\n\n     (a)  The Board may suspend or terminate the Plan at any time.  Unless \nsooner terminated, the Plan shall terminate on October 31, 2001.  No Options \nmay be granted under the Plan while the Plan is suspended or after it is \nterminated. \n\n     (b)  Rights and obligations under any Option granted while the Plan is \nin effect shall not be altered or impaired by suspension or termination of \nthe Plan, except with the consent of the person to whom the Option was \ngranted.\n\n13.  EFFECTIVE DATE OF PLAN.\n\n     The Plan shall become effective as determined by the Board, but no \nOptions granted under the Plan shall be exercised unless and until the \nstockholders of the Company have approved the Plan.\n\n\n\n                                      -13-\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7639],"corporate_contracts_industries":[9405],"corporate_contracts_types":[9539,9545],"class_list":["post-38178","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-gilead-sciences-inc","corporate_contracts_industries-drugs__biotech","corporate_contracts_types-compensation","corporate_contracts_types-compensation__esp"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/38178","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=38178"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=38178"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=38178"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=38178"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}