{"id":38180,"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-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"1991-stock-option-plan-gilead-sciences-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/1991-stock-option-plan-gilead-sciences-inc.html","title":{"rendered":"1991 Stock Option Plan &#8211; Gilead Sciences Inc."},"content":{"rendered":"<pre>\n                              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                       AMENDED AND RESTATED APRIL 5, 2000\n\n                        TERMINATION DATE: APRIL 30, 2010\n\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 was amended and\nrestated in its entirety effective as of January 22, 1998 and amended through\nMarch 30, 1999. Subject to the approval of stockholders of the Company, the Plan\nhereby is amended and restated in its entirety, effective as of April 5, 2000.\nThe terms of the Plan (excluding the previously amended provision relating to\nthe exercise price of Nonstatutory Stock Options) shall apply to all options\ngranted pursuant 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 Affiliates\nmay 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 incentives\nfor such persons to exert maximum efforts for the success of the Company.\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 shall\nbe separately designated Incentive Stock Options or Nonstatutory Stock Options\nat the time of grant, and in such form as issued pursuant to Section 6, and a\nseparate certificate or certificates will be issued for shares purchased on\nexercise 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 in\nSections 424(e) and (f) respectively, of the Code.\n\n       (b)    \"BOARD\" means the Board of Directors of the Company.\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\nthe Company 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 Company\nor its Affiliates is not interrupted or terminated. The Optionee's Continuous\nService shall not be deemed to have terminated merely because of a change in the\ncapacity in which the Optionee renders service to the Company or its \n\n\n\n\n\nAffiliates or a change in the entity for which the Optionee renders such\nservice, provided that there is no interruption or termination of the Optionee's\nContinuous Service. For example, a change in status from an Employee of the\nCompany to a Consultant or Director of the Company or a member of the Board of\nDirectors of an Affiliate will not constitute an interruption of Continuous\nService. The Board or the chief executive officer of the Company, in that\nparty's sole discretion, may determine whether Continuous Service shall be\nconsidered interrupted in the case of any leave of absence approved by the Board\nor the chief executive officer of the Company, including sick leave, military\nleave, 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 Act,\nas 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 a\nDirector nor payment of a director's fee by the Company shall be sufficient to\nconstitute \"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              (i)    If the common stock is listed on any established stock\n       exchange or a national market system, including without limitation the\n       National Market System of the National Association of Securities Dealers,\n       Inc. Automated Quotation (\"NASDAQ\") System, the Fair Market Value of a\n       share of common stock shall be the closing sales price for such stock (or\n       the closing bid, if no sales were reported) as quoted on such system or\n       exchange (or the exchange with the greatest volume of trading in common\n       stock) on the last market trading day prior to the day of determination,\n       as reported in the Wall Street Journal or such other source as the Board\n       deems reliable;\n\n              (ii)   If the common stock is quoted on the NASDAQ System (but not\n       on the National Market System thereof) or is regularly quoted by a\n       recognized securities dealer but selling prices are not reported, the\n       Fair Market Value of a share of common stock shall be the mean between\n       the high bid and high asked prices for the common stock on the last\n       market trading day prior to the day of determination, as reported in the\n       Wall Street Journal or such other source as the Board deems reliable;\n\n              (iii)  In the absence of an established market for the common\n       stock, the Fair Market Value shall be determined in good faith by the\n       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 not\nreceive compensation (directly or indirectly) from the Company or its parent or\nsubsidiary for services rendered as a consultant or in any capacity other than\nas a Director (except for an amount as to which disclosure would not be required\nunder Item 404(a) of Regulation S-K promulgated pursuant to the Securities Act),\ndoes not possess an interest in any other transaction as to which disclosure\nwould be required under Item 404(a) of Regulation S-K, and is not engaged in a\nbusiness relationship as to which disclosure would be required under Item 404(b)\nof Regulation S-K; or (ii) is otherwise considered a \"non-employee director\" for\npurposes of Rule 16b-3.\n\n       (p)    \"NONSTATUTORY STOCK OPTION\" means an Option not intended to\nqualify as 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 Plan.\n\n       (t)    \"OPTIONED STOCK\" means the common stock of the Company subject to\nan Option.\n\n\n\n\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\ncurrent employee of the Company or an \"affiliated corporation\" (within the\nmeaning of the Treasury regulations promulgated under Section 162(m) of the\nCode), is not a former employee of the Company or an \"affiliated corporation\"\nreceiving compensation for prior services (other than benefits under a tax\nqualified pension 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 any\ncapacity other than as a Director, or (ii) is otherwise considered an \"outside\ndirector\" 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 to\nthe 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\n       eligible under the Plan shall be granted Options; when and how the Option\n       shall be granted; whether the Option will be an Incentive Stock Option or\n       a Nonstatutory Stock Option; the provisions of each Option granted (which\n       need not be identical), including the time or times such Option may be\n       exercised in whole or in part; and the number of shares for which an\n       Option shall be granted to each such person.\n\n              (ii)   To construe and interpret the Plan and Options granted\n       under it, and to establish, amend and revoke rules and regulations for\n       its administration. The Board, in the exercise of this power, may correct\n       any defect, omission or inconsistency in the Plan or in any Option\n       Agreement, in a manner and to the extent it shall deem necessary or\n       expedient to make the Plan 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\n       as the Board deems necessary or expedient to promote the best interests\n       of the Company.\n\n       (c)    The Board may delegate administration of the Plan to a Committee\nor Committees 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 administration\nis delegated to a Committee, the Committee shall have, in connection with the\nadministration of the Plan, the powers theretofore possessed by the Board (and\nreferences in this Plan to the Board shall thereafter be to the Committee),\nsubject, however, to such resolutions, not inconsistent with the provisions of\nthe Plan, as may be adopted from time to time by the Board. The Board may\nabolish the Committee at any time and revest in the Board the administration of\nthe Plan. Within the scope of this authority, the Board or the Committee may\ndelegate to a committee of one or more members of the Board the authority to\ngrant Options to eligible persons who (1) are not then subject to Section 16 of\nthe Exchange Act and\/or (2) are either (i) not then Covered Employees and are\nnot expected to be Covered Employees at the time of recognition of income\nresulting from such Option, or (ii) not persons with respect to whom the Company\nwishes to comply with Section 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 not\nexceed in the aggregate ten million seven hundred fifty thousand (10,750,000)\nshares of the Company's common stock. If any Option shall for any reason expire\nor otherwise terminate, in whole or in part, without having been exercised in\nfull, the stock not purchased under such Option shall revert to again become\navailable for 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\n\n\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 pursuant\nto Section 424(d) of the Code) stock possessing more than ten percent (10%) of\nthe total combined voting power of all classes of stock of the Company or of any\nof its Affiliates unless the exercise price of such Option is at least one\nhundred ten percent (110%) of the Fair Market Value of such stock at the date of\ngrant and the Option is not exercisable after the expiration of five (5) years\nfrom 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\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) the\nsubstance 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\n       Option and each Nonstatutory Stock Option shall be not less than one\n       hundred percent (100%) of the fair market value of the stock subject to\n       the Option on the date the Option is granted.\n\n              (ii)   NO AUTHORITY TO REPRICE. Without the consent of the\n       stockholders of the Company, the Board shall have no authority to effect\n       (a) the repricing of any outstanding Options under the Plan and\/or \n       (b) the cancellation of any outstanding Options under the Plan and \n       the grant in substitution therefor of new Options under the Plan \n       covering the same or different 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 \nand regulations, either \n\n              (i)    in cash at the time the Option is exercised, or \n\n              (ii)   at the discretion of the Board or the Committee, at the \n       time of the grant of the Option, (A) by delivery to the Company of other \n       common stock of the Company, (B) according to a deferred payment \n       arrangement, except that payment of the common stock's \"par value\" (as\n       defined in the Delaware General Corporation Law) shall not be made by\n       deferred payment or other arrangement (which may include, without \n       limiting the generality of the foregoing, the use of other common stock \n       of the Company) with the person to whom the Option is granted or to whom\n       the Option is transferred pursuant to subsection 6(d), or (C) in any \n       other form of legal consideration that may be acceptable to the Board.\n\n       In the case of any deferred payment arrangement, interest shall be \n       compounded at least annually and shall be charged at the minimum rate \n       of interest necessary to avoid the treatment as interest, under any \n       applicable provisions of the Code, of any amounts other than amounts \n       stated to be interest 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 \ndistribution, and shall be exercisable during the lifetime of the \nperson to whom the Option is granted only by such person. A \nNonstatutory Stock Option but not an Incentive Stock Option, may be \ntransferred to the extent provided in the Option Agreement; provided \nthat if the Option Agreement does not expressly permit the transfer of \na Nonstatutory Stock Option, the Nonstatutory Stock Option shall not \nbe transferable except by will, by the laws of descent and \ndistribution and shall be exercisable during the lifetime of the \nperson to whom the Option is granted only by such person. The person \nto whom the Option is granted may, by delivering written notice to the \nCompany, in a form satisfactory to the Company, designate a third \nparty who, in the event of the death of the Optionee, shall thereafter \nbe entitled to exercise the Option. \n\n       (e)    VESTING. The total number of shares of stock subject to an \nOption may, but need not, be allotted in periodic installments (which \nmay, but need not, be equal). The Option Agreement may provide that \nfrom time to time during each of such installment periods, the Option \nmay become exercisable (\"vest\") with respect to some or all of the \nshares allotted to that period, and may be exercised with respect to \nsome or all of the shares allotted to such period and\/or any prior \nperiod as to which the Option became vested but was not fully \nexercised. During the remainder of the term of the Option (if its term \nextends beyond the end of the installment periods), the option may be \nexercised from time to time with respect to any shares then remaining \nsubject to he Option. The Option may be subject to such other terms \nand conditions on the time or times when it may be exercised (which \nmay be based on performance or other criteria) as the Board may deem \nappropriate. The provisions of this subsection 6(e) are subject to any \nOption provisions governing the minimum number of shares as to which \nan Option may be exercised. \n\n       (f)    SECURITIES LAW COMPLIANCE. The Company may require any \nOptionee, or any person to whom an Option is transferred under subsection \n6(d), as a condition of exercising any such Option, (1) to give written \nassurances satisfactory to the Company as to the Optionee's knowledge and \nexperience in financial and business matters and\/or to employ a purchaser \nrepresentative reasonably satisfactory to the Company who is knowledgeable \nand \n\n\n\n\nexperienced in financial and business matters, and that he or she is capable \nof evaluating, alone or together with the purchaser representative, the \nmerits and 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 requirements, \nand any assurances given pursuant to such requirements, shall be inoperative \nif (i) the issuance of the shares upon the exercise of the Option has been \nregistered under a then currently effective registration statement under the \nSecurities Act of 1933, as amended (the \"Securities Act\"), or (ii) as to any \nparticular requirement, a determination is made by counsel for the Company \nthat such requirement need not be met in the circumstances under the then \napplicable securities laws. The Company may require the Optionee to provide \nsuch other representations, written assurances, or information which the \nCompany shall determine is necessary, desirable or appropriate to comply with \napplicable securities and other laws as a condition of granting an Option to \nsuch Optionee or permitting the Optionee to exercise such Option. The Company \nmay, upon advice of counsel to the Company, place legends on stock \ncertificates issued under the Plan as such counsel deems necessary or \nappropriate in order to comply with applicable securities laws, including, \nbut not limited to, legends restricting the transfer of the stock. \n\n       (g)    TERMINATION OF EMPLOYMENT OR CONSULTING RELATIONSHIP. In the \nevent an Optionee's Continuous Service terminates (other than upon the \nOptionee's death or Disability), the Optionee may exercise his or her Option, \nbut only within such period of time as is determined by the Board, and only \nto the extent that the Optionee was entitled to exercise it at the date of \ntermination (but in no event later than the expiration of the term of such \nOption as set forth in the Option Agreement). In the case of an Incentive \nStock Option, the Board shall determine such period of time (in no event to \nexceed ninety (90) days from the date of termination) when the Option is \ngranted. If, at the date of termination, the Optionee is not entitled to \nexercise his or her entire Option, the shares covered by the unexercisable \nportion of the Option shall revert to the Plan. If, after termination, the \nOptionee does not exercise his or her Option within the time specified in the \nOption Agreement, the Option shall terminate, and the shares covered by such \nOption 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 \nprovision whereby the Optionee may elect at any time while an Employee or \nConsultant to exercise the Option as to any part or all of the shares subject \nto the Option prior to the full vesting of the Option. Any unvested shares so \npurchased may be subject to a repurchase right in favor of the Company or to \nany other restriction 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\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\nor agency having jurisdiction over the Plan such authority as may be required to\nissue and sell shares of stock upon exercise of the Options; provided, however,\nthat this undertaking shall not require the Company to register under the\nSecurities Act either the Plan, any Option or any stock issued or issuable\npursuant to any such Option. If, after reasonable efforts, the Company is unable\nto obtain from any such regulatory commission or agency the authority which\ncounsel for the Company deems necessary for the lawful issuance and sale of\nstock under the Plan, the Company shall be relieved from any liability for\nfailure to issue and sell stock upon exercise of such Options unless and until\nsuch authority is obtained.\n\n\n\n\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 in\nthe 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\ntransferred under subsection 6(d) shall be deemed to be the holder of, or to\nhave any of the rights of a holder with respect to, any shares subject to such\nOption unless and until such person has satisfied all requirements for exercise\nof the 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 continue\nacting as a Consultant) or shall affect the right of the Company or any\nAffiliate to terminate the employment or relationship as a Consultant of any\nEmployee, 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 dollars\n($100,000), the Options or portions thereof which exceed such limit (according\nto the order in which they were granted) shall be treated as Nonstatutory Stock\nOptions.\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, recapitalization,\nstock dividend, dividend in property other than cash, stock split, liquidating\ndividend, combination of shares, exchange of shares, change in corporate\nstructure or otherwise), the Plan will be appropriately adjusted in the\nclass(es) and maximum number of shares subject to the Plan pursuant to\nsubsection 4(a) and the maximum number of shares subject to award to any person\nduring any calendar year period pursuant to subsection 5(d), and the outstanding\nOptions will be appropriately adjusted in the class(es) and number of shares and\nprice per share of stock subject to such outstanding Options.\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 immediately\npreceding the merger are converted by virtue of the merger into other property,\nwhether in the form of securities, cash or otherwise; or (4) any other capital\nreorganization in which more than fifty percent (50%) of the shares of the\nCompany entitled to vote are exchanged, then, at the sole discretion of the\nBoard and to the extent permitted by applicable law: (i) any surviving\ncorporation shall assume any Options outstanding under the Plan or shall\nsubstitute similar Options for those outstanding under the Plan, (ii) the time\nduring which such Options may be exercised shall be accelerated and the Options\nterminated if not exercised prior to such event, or (iii) such Options shall\ncontinue 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\") and\nif within one (1) month before or thirteen (13) months after the date of such\nChange in Control the Continuous Service of an Optionee terminates due to an\ninvoluntary termination (not including death or Disability) without Cause (as\nsuch term is defined below) or a voluntary termination by the Optionee due to a\nConstructive Termination (as such term is defined below), then the vesting and\nexercisability of all Options held by such Optionee shall be accelerated, or any\nreacquisition or repurchase rights held by the Company with respect to an option\nshall lapse, as follows. With respect to those Options held by an Optionee at\nthe time of such termination, one hundred percent (100%) of the unvested shares\ncovered by such Options shall vest and become exercisable (or reacquisition or\nrepurchase rights held by the Company shall lapse with respect to one hundred\npercent (100%) of the shares still subject to such rights, as appropriate) as of\nthe date of such termination. Notwithstanding the foregoing, however, if such\npotential acceleration of the vesting and exercisability of Options (or lapse of\nreacquisition or repurchase rights held by the Company with respect to Options)\nwould cause a contemplated Change in Control transaction that would otherwise be\neligible to be accounted for as a \"pooling-of-interests\" transaction to become\nineligible for such accounting treatment under generally accepted accounting\nprinciples as determined by the Company's independent public accountants (the\n\"Accountants\") prior to the Change of Control, such acceleration shall not\noccur.\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 a\ncharge that an Optionee has committed a felony under the laws of the United\nStates or of any state or a crime involving moral turpitude, including, but not\nlimited to, fraud, theft, embezzlement or any crime that results in or is\nintended to result in personal enrichment at the expense of the Company or an\nAffiliate; (ii) material breach of any agreement entered into between the\nOptionee and the \n\n\n\n\n\nCompany or an Affiliate that impairs the Company's or the Affiliate's interest\ntherein; (iii) willful misconduct, significant failure of the Optionee to\nperform the Optionee's duties, or gross neglect by the Optionee of the\nOptionee's duties; or (iv) engagement in any activity that constitutes a\nmaterial 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 (including\nreporting responsibilities) which represents an adverse change from the\nOptionee's status, title, position or responsibilities as in effect at any time\nwithin ninety (90) days preceding the date of a Change in Control or at any time\nthereafter; (B) the assignment to the Optionee of any duties or responsibilities\nwhich are inconsistent with the Optionee's status, title, position or\nresponsibilities as in effect at any time within ninety (90) days preceding the\ndate of a Change in Control or at any time thereafter; or (C) any removal of the\nOptionee from or failure to reappoint or reelect the Optionee to any of such\noffices or positions, except in connection with the termination of the\nOptionee's Continuous Service for Cause, as a result of the Optionee's\nDisability or death or by the Optionee other than as a result of Constructive\nTermination; (ii) a reduction in the Optionee's annual base compensation or any\nfailure to pay the Optionee any compensation or benefits to which the Optionee\nis entitled within five (5) days of the date due; (iii) the Company's requiring\nthe Optionee to relocate to any place outside a fifty (50) mile radius of the\nOptionee's current work site, except for reasonably required travel on the\nbusiness of the Company or its Affiliates which is not materially greater than\nsuch travel requirements prior to the Change in Control; (iv) the failure by the\nCompany to (A) continue in effect (without reduction in benefit level and\/or\nreward opportunities) any material compensation or employee benefit plan in\nwhich the Optionee was participating at any time within ninety (90) days\npreceding the date of a Change in Control or at any time thereafter, unless such\nplan is replaced with a plan that provides substantially equivalent compensation\nor benefits to the Optionee, or (B) provide the Optionee with compensation and\nbenefits, in the aggregate, at least equal (in terms of benefit levels and\/or\nreward opportunities) to those provided for under each other employee benefit\nplan, program and practice in which the Optionee was participating at any time\nwithin ninety (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 or\notherwise, other than a breach which is cured by the Company within fifteen (15)\ndays following notice by the Optionee of such breach; or (vi) the failure of the\nCompany to obtain an agreement, satisfactory to the Optionee, from any\nsuccessors and assigns to assume and agree to perform the obligations created\nunder 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) and\nbenefits otherwise payable to an Optionee (i) constitute \"parachute payments\"\nwithin the meaning of Section 280G (as it may be amended or replaced) of the\nCode, and (ii) but for this subsection 10(d) would be subject to the excise tax\nimposed by Section 4999 (as it may be amended or replaced) of the Code (the\n\"Excise Tax\"), then such Optionee's benefits hereunder shall be delivered to\nsuch lesser extent which would result in no portion of such benefits being\nsubject to the Excise Tax; PROVIDED, HOWEVER, that the benefits hereunder shall\nbe reduced only to the extent necessary after all cash amounts otherwise payable\nto such Optionee and which constitute \"parachute payments\" have been returned.\nUnless the Company and such Optionee otherwise agree in writing, any\ndetermination required under this subsection 10(d) shall be made in writing in\ngood faith by the Accountants. For purposes of making the calculations required\nby this subsection 10(d), the Accountants may make reasonable assumptions and\napproximations concerning applicable taxes and may rely on reasonable, good\nfaith interpretations concerning the application of the Code. The Company and\nsuch Optionees shall furnish to the Accountants such information and documents\nas the Accountants may reasonably request in order to make a determination under\nthis subsection 10(d). The Company shall bear all costs the Accountants may\nreasonably incur in connection with any calculations contemplated by this\nsubsection 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 changes\nin stock, no amendment shall be effective unless approved by the stockholders of\nthe Company within twelve (12) months before or after the adoption of the\namendment, where the amendment will:\n\n              (i)    Increase the number of shares reserved for options under\n       the Plan;\n\n              (ii)   Effect (a) the repricing of any outstanding Options under\n       the Plan and\/or (b) the cancellation of any outstanding Options under the\n       Plan and the grant in substitution therefor of new Options under the Plan\n       covering the same or different numbers of shares of Common Stock;\n\n              (iii)  Modify the requirements as to eligibility for participation\n       in the Plan (to the extent such modification requires stockholder\n       approval in order for the Plan to satisfy the requirements of Section 422\n       of the Code); or\n\n              (iv)   Modify the Plan in any other way if such modification\n       requires stockholder approval in order for the Plan to satisfy the\n       requirements of Section 422 of the Code or to comply with the\n       requirements of Rule 16b-3 or any Nasdaq or securities exchange listing\n       requirements.\n\n       (b)    The Board may in its sole discretion submit any other amendment to\nthe Plan for stockholder approval, including, but \n\n\n\n\n\nnot limited to, amendments to the Plan intended to satisfy the requirements of\nSection 162(m) of the Code and the regulations promulgated thereunder regarding\nthe exclusion of performance-based compensation from the limit on corporate\ndeductibility of compensation paid to certain executive officers.\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 the\nmaximum benefits provided or to be provided under the provisions of the Code and\nthe regulations promulgated thereunder relating to Incentive Stock Options\nand\/or to bring the Plan and\/or Incentive Stock Options granted under it into\ncompliance therewith.\n\n       (d)    Rights and obligations under any Option granted before amendment\nof the 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 April 30, 2010, which is a date\nwithin ten (10) years following stockholder approval of the amended and restated\nPlan adopted by the Board on April 5, 2000. No Options may be granted under the\nPlan while the Plan is suspended or after it is terminated.\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 the\nPlan, except with the consent of the person to whom the Option was granted.\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                 (This page has been left blank intentionally.)\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-38180","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\/38180","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=38180"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=38180"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=38180"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=38180"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}