{"id":38827,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/employee-stock-purchase-plan-gilead-sciences-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employee-stock-purchase-plan-gilead-sciences-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employee-stock-purchase-plan-gilead-sciences-inc.html","title":{"rendered":"Employee Stock Purchase Plan &#8211; Gilead Sciences Inc."},"content":{"rendered":"<pre>                              GILEAD SCIENCES, INC.\n \n                          EMPLOYEE STOCK PURCHASE PLAN\n \n                           ADOPTED NOVEMBER 15, 1991\n                              AMENDED MAY 25, 1994\n                     AMENDED AND RESTATED JANUARY 22, 1998\n \n                      TERMINATION DATE: NOVEMBER 14, 2001\n \n1.  PURPOSE.\n \n    (a) The purpose of the Employee Stock Purchase Plan ('the Plan') is to\nprovide a means by which employees of GILEAD SCIENCES, INC., a Delaware\ncorporation (the 'Company'), and its Affiliates, as defined in subparagraph\n1(c), which are designated as provided in subparagraph 2(b), may be given an\nopportunity to purchase stock of the Company.\n \n    (b) Plan initially was adopted on November 15, 1991 and subsequently amended\non May 25, 1994 (the 'Initial Plan'). The Initial Plan hereby is amended and\nrestated in its entirety effective as of January 22, 1998. The terms of the\nInitial Plan (other than the aggregate number of shares issuable thereunder)\nshall remain in effect and apply to all options granted pursuant to the Initial\nPlan.\n \n    (c) The word 'Affiliate' as used in the Plan means any parent corporation or\nsubsidiary corporation of the Company, as those terms are defined in Sections\n424(e) and (f), respectively, of the Internal Revenue Code of 1986, as amended\n(the 'Code').\n \n    (d) The Company, by means of the Plan, seeks to retain the services of its\nemployees, to secure and retain the services of new employees, and to provide\nincentives for such persons to exert maximum efforts for the success of the\nCompany.\n \n    (e) The Company intends that the rights to purchase stock of the Company\ngranted under the Plan be considered options issued under an 'employee stock\npurchase plan' as that term is defined in Section 423(b) of the Code.\n \n2.  ADMINISTRATION.\n \n    (a) The Plan shall be administered by the Board of Directors (the 'Board')\nof the Company unless and until the Board delegates administration to a\nCommittee, as provided in subparagraph 2(c). Whether or not the Board has\ndelegated administration, the Board shall have the final power to determine all\nquestions of policy and expediency that may arise in the administration of the\nPlan.\n \n    (b) The Board shall have the power, subject to, and within the limitations\nof, the express provisions of the Plan:\n \n        (i) To determine when and how rights to purchase stock of the Company\n    shall be granted and the provisions of each offering of such rights (which\n    need not be identical).\n \n        (ii) To designate from time to time which Affiliates of the Company\n    shall be eligible to participate in the Plan.\n \n       (iii) To construe and interpret the Plan and rights granted under it, and\n    to establish, amend and revoke rules and regulations for its administration.\n    The Board, in the exercise of this power, may correct any defect, omission\n    or inconsistency in the Plan, in a manner and to the extent it shall deem\n    necessary or expedient to make the Plan fully effective.\n \n        (iv) To amend the Plan as provided in paragraph 13.\n \n                                       1\n\n        (v) Generally, to exercise such powers and to perform such acts as the\n    Board deems necessary or expedient to promote the best interests of the\n    Company.\n \n    (c) The Board may delegate administration of the Plan to a Committee\ncomposed of not fewer than two (2) members of the Board (the 'Committee'). If\nadministration is delegated to a Committee, the Committee shall have, in\nconnection with the administration of the Plan, the powers theretofore possessed\nby the Board, subject, however, to such resolutions, not inconsistent with the\nprovisions of the Plan, as may be adopted from time to time by the Board. The\nBoard may abolish the Committee at any time and revest in the Board the\nadministration of the Plan.\n \n3.  SHARES SUBJECT TO THE PLAN.\n \n    Subject to the provisions of paragraph 12 relating to adjustments upon\nchanges in stock, the stock that may be sold pursuant to rights granted under\nthe Plan shall not exceed in the aggregate one million two hundred fifty\nthousand (1,250,000) shares of the Company's .001 par value common stock (the\n'Common Stock'). If any right granted under the Plan shall for any reason\nterminate without having been exercised, the Common Stock not purchased under\nsuch right shall again become available for the Plan. The stock subject to the\nPlan may be unissued shares or reacquired shares, bought on the market or\notherwise.\n \n4.  GRANT OF RIGHTS; OFFERING.\n \n    The Board or the Committee may from time to time grant or provide for the\ngrant of rights to purchase Common Stock of the Company under the Plan to\neligible employees (an 'Offering') on a date or dates (the 'Offering Date(s)')\nselected by the Board or the Committee. Each Offering shall be in such form and\nshall contain such terms and conditions as the Board or the Committee shall deem\nappropriate. If an employee has more than one right outstanding under the Plan,\nunless he or she otherwise indicates in agreements or notices delivered\nhereunder: (1) each agreement or notice delivered by that employee will be\ndeemed to apply to all of his or her rights under the Plan, and (2) a right with\na lower exercise price (or an earlier-granted right, if two rights have\nidentical exercise prices), will be exercised to the fullest possible extent\nbefore a right with a higher exercise price (or a later-granted right, if two\nrights have identical exercise prices) will be exercised. The provisions of\nseparate Offerings need not be identical, but each Offering shall include\n(through incorporation of the provisions of this Plan by reference in the\nOffering or otherwise) the substance of the provisions contained in paragraphs 5\nthrough 8, inclusive.\n \n5.  ELIGIBILITY.\n \n    (a) Rights may be granted only to employees of the Company or, as the Board\nor the Committee may designate as provided in subparagraph 2(b), to employees of\nany Affiliate of the Company. Except as provided in subparagraph 5(b), an\nemployee of the Company or any Affiliate shall not be eligible to be granted\nrights under the Plan, unless, on the Offering Date, such employee has been in\nthe employ of the Company or any Affiliate for such continuous period preceding\nsuch grant as the Board or the Committee may require, but in no event shall the\nrequired period of continuous employment be equal to or greater than two (2)\nyears. In addition, unless otherwise determined by the Board or the Committee\nand set forth in the terms of the applicable Offering, no employee of the\nCompany or any Affiliate shall be eligible to be granted rights under the Plan,\nunless, on the Offering Date, such employee's customary employment with the\nCompany or such Affiliate is at least twenty (20) hours per week and at least\nfive (5) months per calendar year.\n \n    (b) The Board or the Committee may provide that, each person who, during the\ncourse of an Offering, first becomes an eligible employee of the Company or\ndesignated Affiliate will, on a date or dates specified in the Offering which\ncoincides with the day on which such person becomes an eligible employee or\noccurs thereafter, receive a right under that Offering, which right shall\nthereafter be deemed to be a\n \n                                       2\n\npart of that Offering. Such right shall have the same characteristics as any\nrights originally granted under that Offering, as described herein, except that:\n \n        (i) the date on which such right is granted shall be the 'Offering Date'\n    of such right for all purposes, including determination of the exercise\n    price of such right;\n \n        (ii) the Purchase Period (as defined below) for such right shall begin\n    on its Offering Date and end coincident with the end of such Offering; and\n \n       (iii) the Board or the Committee may provide that if such person first\n    becomes an eligible employee within a specified period of time before the\n    end of the Purchase Period (as defined below) for such Offering, he or she\n    will not receive any right under that Offering.\n \n    (c) No employee shall be eligible for the grant of any rights under the Plan\nif, immediately after any such rights are granted, such employee owns stock\npossessing five percent (5%) or more of the total combined voting power or value\nof all classes of stock of the Company or of any Affiliate. For purposes of this\nsubparagraph 5(c), the rules of Section 424(d) of the Code shall apply in\ndetermining the stock ownership of any employee, and stock which such employee\nmay purchase under all outstanding rights and options shall be treated as stock\nowned by such employee.\n \n    (d) An eligible employee may be granted rights under the Plan only if such\nrights, together with any other rights granted under 'employee stock purchase\nplans' of the Company and any Affiliates, as specified by Section 423(b)(8) of\nthe Code, do not permit such employee's rights to purchase stock of the Company\nor any Affiliate to accrue at a rate which exceeds twenty-five thousand dollars\n($25,000) of fair market value of such stock (determined at the time such rights\nare granted) for each calendar year in which such rights are outstanding at any\ntime.\n \n    (e) Officers of the Company and any designated Affiliate shall be eligible\nto participate in Offerings under the Plan, provided, however, that the Board\nmay provide in an Offering that certain employees who are highly compensated\nemployees within the meaning of Section 423(b)(4)(D) of the Code shall not be\neligible to participate.\n \n6.  RIGHTS; PURCHASE PRICE.\n \n    (a) On each Offering Date, each eligible employee, pursuant to an Offering\nmade under the Plan, shall be granted the right to purchase the number of shares\nof Common Stock of the Company purchasable with up to fifteen percent (15%) (or\nsuch lower percentage as the Board determines for a particular Offering) of such\nemployee's Earnings (as defined in Section 7(a)) during the period which begins\non the Offering Date (or such later date as the Board determines for a\nparticular Offering) and ends on the date stated in the Offering, which date\nshall be no more than twenty-seven (27) months after the Offering Date (the\n'Purchase Period'). In connection with each Offering made under this Plan, the\nBoard or the Committee shall specify a maximum number of shares which may be\npurchased by any employee as well as a maximum aggregate number of shares which\nmay be purchased by all eligible employees pursuant to such Offering. In\naddition, in connection with each Offering which contains more than one Exercise\nDate (as defined in the Offering), the Board or the Committee may specify a\nmaximum aggregate number of shares which may be purchased by all eligible\nemployees on any given Exercise Date under the Offering. If the aggregate\npurchase of shares upon exercise of rights granted under the Offering would\nexceed any such maximum aggregate number, the Board or the Committee shall make\na pro rata allocation of the shares available in as nearly a uniform manner as\nshall be practicable and as it shall deem to be equitable.\n \n    (b) In connection with each Offering made under the Plan, the Board or the\nCommittee may specify a maximum number of shares that may be purchased by any\nemployee as well as a maximum aggregate number of shares that may be purchased\nby all eligible employees pursuant to such Offering. In addition, in connection\nwith each Offering that contains more than one Purchase Date, the Board or the\nCommittee may specify a maximum aggregate number of shares which may be\npurchased by all eligible employees on\n \n                                       3\n\nany given Purchase Date under the Offering. If the aggregate purchase of shares\nupon exercise of rights granted under the Offering would exceed any such maximum\naggregate number, the Board or the Committee shall make a pro rata allocation of\nthe shares available in as nearly a uniform manner as shall be practicable and\nas it shall deem to be equitable.\n \n    (c) The purchase price of stock acquired pursuant to rights granted under\nthe Plan shall be not less than the lesser of:\n \n        (i) an amount equal to eighty-five percent (85%) of the fair market\n    value of the stock on the Offering Date; or\n \n        (ii) an amount equal to eighty-five percent (85%) of the fair market\n    value of the stock on the Exercise Date.\n \n7.  PARTICIPATION; WITHDRAWAL; TERMINATION.\n \n    (a) An eligible employee may become a participant in an Offering by\ndelivering a participation agreement to the Company within the time specified in\nthe Offering, in such form as the Company provides. Each such agreement shall\nauthorize payroll deductions of up to fifteen percent (15%) (or such lower\npercentage as the Board determines for a particular Offering) of such employee's\nEarnings during the Purchase Period. 'Earnings' is defined as an employee's\ntotal compensation, including all salary, wages and other remuneration paid to\nan employee (including amounts elected to be deferred by the employee, that\nwould otherwise have been paid, under any cash or deferred arrangement\nestablished by the Company), overtime pay, commissions, bonuses, profit sharing,\nany special payments for extraordinary services, provided, however, that the\nBoard in its sole discretion may limit the above definition from time to time\nwith respect to each Offering. The payroll deductions made for each participant\nshall be credited to an account for such participant under the Plan and shall be\ndeposited with the general funds of the Company. A participant may reduce,\nincrease or begin such payroll deductions after the beginning of any Purchase\nPeriod only as provided for in the Offering. A participant may make additional\npayments into his or her account only if specifically provided for in the\nOffering and only if the participant has not had the maximum amount withheld\nduring the Purchase Period.\n \n    (b) At any time during a Purchase Period a participant may terminate his or\nher payroll deductions under the Plan and withdraw from the Offering by\ndelivering to the Company a notice of withdrawal in such form as the Company\nprovides. Such withdrawal may be elected at any time prior to the end of the\nPurchase Period. Upon such withdrawal from the Offering by a participant, the\nCompany shall distribute to such participant all of his or her accumulated\npayroll deductions (reduced to the extent, if any, such deductions have been\nused to acquire stock for the participant) under the Offering, without interest\nunless the terms of the Offering specifically so provide, and such participant's\ninterest in that Offering shall be automatically terminated. A participant's\nwithdrawal from an Offering will have no effect upon such participant's\neligibility to participate in any other Offerings under the Plan but such\nparticipant will be required to deliver a new participation agreement in order\nto participate in subsequent Offerings under the Plan.\n \n    (c) Rights granted pursuant to any Offering under the Plan shall terminate\nimmediately upon cessation of any participating employee's employment with the\nCompany or an Affiliate, for any reason, and the Company shall distribute to\nsuch terminated employee all of his or her accumulated payroll deductions\n(reduced to the extent, if any, such deductions have been used to acquire stock\nfor the terminated employee), under the Offering, without interest unless the\nterms of the Offering specifically so provide.\n \n    (d) Rights granted under the Plan shall not be transferable by a participant\notherwise than by will or the laws of descent and distribution, or by a\nbeneficiary designation as provided in paragraph 14 and,\n \n                                       4\n\notherwise during his or her lifetime, shall be exercisable only by the person to\nwhom such rights are granted.\n \n8.  EXERCISE.\n \n    (a) On each exercise date, as defined in the relevant Offering (an 'Exercise\nDate'), each participant's accumulated payroll deductions (without any increase\nfor interest unless the terms of the Offering specifically so provide) will be\napplied to the purchase of whole shares of stock of the Company, up to the\nmaximum number of shares permitted pursuant to the terms of the Plan and the\napplicable Offering, at the purchase price specified in the Offering. No\nfractional shares shall be issued upon the exercise of rights granted under the\nPlan. The amount, if any, of accumulated payroll deductions remaining in each\nparticipant's account after the purchase of shares which is less than the amount\nrequired to purchase one share of stock on the final Exercise Date of an\nOffering shall be held in each such participant's account for the purchase of\nshares under the next Offering under the Plan, unless such participant withdraws\nfrom such next Offering, as provided in subparagraph 7(b), or is no longer\neligible to be granted rights under the Plan, as provided in paragraph 5, in\nwhich case such amount shall be distributed to the participant after said final\nExercise Date, without interest unless the terms of the Offering specifically so\nprovide. The amount, if any, of accumulated payroll deductions remaining in any\nparticipant's account after the purchase of shares which is equal to the amount\nrequired to purchase whole shares of stock on the final Exercise Date of an\nOffering shall be distributed in full to the participant after such Exercise\nDate, without interest unless the terms of the Offering specifically so provide.\n \n    (b) No rights granted under the Plan may be exercised to any extent unless\nthe Plan (including rights granted thereunder) is covered by an effective\nregistration statement pursuant to the Securities Act of 1933, as amended (the\n'Securities Act'). If on an Exercise Date of any Offering hereunder the Plan is\nnot so registered, no rights granted under the Plan or any Offering shall be\nexercised on said Exercise Date and all payroll deductions accumulated during\nthe purchase period (reduced to the extent, if any, such deductions have been\nused to acquire stock) shall be distributed to the participants, without\ninterest unless the terms of the Offering specifically so provide.\n \n    (c) Shares of stock of the Company that are purchased may be registered in\nthe name of the participant or jointly in the name of the participant and his or\nher spouse as joint tenants with right of survivorship or community property.\n \n9.  COVENANTS OF THE COMPANY.\n \n    (a) During the terms of the rights granted under the Plan, the Company shall\nkeep available at all times the number of shares of stock required to satisfy\nsuch rights.\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 rights granted under the\nPlan. If, after reasonable efforts, the Company is unable to obtain from any\nsuch regulatory commission or agency the authority which counsel for the Company\ndeems necessary for the lawful issuance and sale of stock under the Plan, the\nCompany shall be relieved from any liability for failure to issue and sell stock\nupon exercise of such rights unless and until such authority is obtained.\n \n10. USE OF PROCEEDS FROM STOCK.\n \n    Proceeds from the sale of stock pursuant to rights granted under the Plan\nshall constitute general funds of the Company.\n \n                                       5\n\n11. RIGHTS AS A STOCKHOLDER.\n \n    A participant shall not be deemed to be the holder of, or to have any of the\nrights of a holder with respect to, any shares subject to rights granted under\nthe Plan unless and until certificates representing such shares shall have been\nissued.\n \n12. ADJUSTMENTS UPON CHANGES IN STOCK.\n \n    (a) If any change is made in the stock subject to the Plan, or subject to\nany rights granted under the Plan (through merger, consolidation,\nreorganization, recapitalization, stock dividend, dividend in property other\nthan cash, stock split, liquidating dividend, combination of shares, exchange of\nshares, change in corporate structure or otherwise), the Plan and outstanding\nrights will be appropriately adjusted in the class(es) and maximum number of\nshares subject to the Plan and the class(es) and number of shares and price per\nshare of stock subject to outstanding rights.\n \n    (b) In the event of: (1) a dissolution or liquidation of the Company; (2) a\nmerger or consolidation in which the Company is not the surviving corporation;\n(3) a reverse merger in which the Company is the surviving corporation but the\nshares of the Company's Common Stock outstanding immediately preceding the\nmerger are converted by virtue of the merger into other property, whether in the\nform of securities, cash or otherwise; or (4) any other capital reorganization\nin which more than fifty percent (50%) of the shares of the Company entitled to\nvote are exchanged, then, as determined by the Board in its sole discretion (i)\nany surviving corporation may assume outstanding rights or substitute similar\nrights for those under the Plan, (ii) such rights may continue in full force and\neffect, or (iii) participants' accumulated payroll deductions may be used to\npurchase Common Stock immediately prior to the transaction described above and\nthe participants' rights under the ongoing Offering terminated.\n \n13. 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 paragraph 12 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 rights under the Plan;\n \n        (ii) Modify the provisions as to eligibility for participation in the\n    Plan (to the extent such modification requires stockholder approval in order\n    for the Plan to obtain employee stock purchase plan treatment under Section\n    423 of the Code or to comply with the requirements of Rule 16b-3 promulgated\n    under the Exchange Act of 1934, as amended ( the 'Exchange Act')); or\n \n       (iii) Modify the Plan in any other way if such modification requires\n    stockholder approval in order for the Plan to obtain employee stock purchase\n    plan treatment under Section 423 of the Code or to comply with the\n    requirements of Rule 16b-3 promulgated under the Exchange Act or any Nasdaq\n    or securities exchange listing requirements.\n \nThe Board may, in its sole discretion, submit any other amendment to the Plan\nfor stockholder approval. It is expressly contemplated that the Board may amend\nthe Plan in any respect the Board deems necessary or advisable to provide\neligible employees with the maximum benefits provided or to be provided under\nthe provisions of the Code and the regulations promulgated thereunder relating\nto employee stock purchase plans and\/or to bring the Plan and\/or rights granted\nunder it into compliance therewith.\n \n    (b) Rights and obligations under any rights granted before amendment of the\nPlan shall not be altered or impaired by any amendment of the Plan, except with\nthe consent of the person to whom such rights were granted or except as\nnecessary to comply with any laws or governmental regulations or to\n \n                                       6\n\nensure that the Plan and\/or rights granted under the Plan comply with the\nrequirements of Section 423 of the Code.\n \n14. DESIGNATION OF BENEFICIARY.\n \n    (a) A participant may file a written designation of a beneficiary who is to\nreceive any shares and cash, if any, from the participant's account under the\nPlan in the event of such participant's death subsequent to the end of an\nOffering but prior to delivery to the participant of such shares and cash. In\naddition, a participant may file a written designation of a beneficiary who is\nto receive any cash from the participant's account under the Plan in the event\nof such participant's death during an Offering.\n \n    (b) The participant may change such designation of beneficiary at any time\nby written notice. In the event of the death of a participant and in the absence\nof a beneficiary validly designated under the Plan who is living at the time of\nsuch participant's death, the Company shall deliver such shares and\/or cash to\nthe executor or administrator of the estate of the participant, or if no such\nexecutor or administrator has been appointed (to the knowledge of the Company),\nthe Company, in its sole discretion, may deliver such shares and\/or cash to the\nspouse or to any one or more dependents or relatives of the participant, or if\nno spouse, dependent or relative is known to the Company, then to such other\nperson as the Company may designate.\n \n15. TERMINATION OR SUSPENSION OF THE PLAN.\n \n    (a) The Board may suspend or terminate the Plan at any time. Unless sooner\nterminated, the Plan shall terminate ten (10) years from the date the Plan is\nadopted by the Board or approved by the stockholders of the Company, whichever\nis earlier. No rights may be granted under the Plan while the Plan is suspended\nor after it is terminated.\n \n    (b) Rights and obligations under any rights granted while the Plan is in\neffect shall not be impaired by suspension or termination of the Plan, except as\nexpressly provided in the Plan or with the consent of the person to whom such\nrights were granted, or except as necessary to comply with any laws or\ngovernmental regulation or to ensure that the Plan and\/or rights granted under\nthe Plan comply with the requirements of Section 423 of the Code.\n \n16. EFFECTIVE DATE OF PLAN.\n \n    The Plan shall become effective as determined by the Board, but no rights\ngranted under the Plan shall be exercised unless and until the stockholders of\nthe Company have approved the Plan.\n \n                                       7\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-38827","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\/38827","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=38827"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=38827"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=38827"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=38827"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}