{"id":43605,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/share-option-agreement-nexstar-pharmaceuticals-inc-and-gilead.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"share-option-agreement-nexstar-pharmaceuticals-inc-and-gilead","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/share-option-agreement-nexstar-pharmaceuticals-inc-and-gilead.html","title":{"rendered":"Share Option Agreement &#8211; NeXstar Pharmaceuticals Inc. and Gilead Sciences Inc."},"content":{"rendered":"<pre>                                SHARE OPTION AGREEMENT\n\n     THIS SHARE OPTION AGREEMENT (the 'Option Agreement') is entered into as of\nFebruary 28, 1999, by and between NEXSTAR PHARMACEUTICALS, INC., a Delaware\ncorporation (the 'Company'), and GILEAD SCIENCES, INC., a Delaware corporation\n(the 'Grantee').\n\n                                       RECITALS\n\n     A.   The Grantee, Gazelle Acquisition Sub, Inc., a Delaware corporation and\na wholly owned subsidiary of the Grantee ('Merger Sub'), and the Company are\nentering into an Agreement and Plan of Merger of even date herewith (as amended\nfrom time to time, the 'Merger Agreement'), which provides (subject to the\nconditions set forth therein) for the merger of Merger Sub into the Company (the\n'Merger').\n\n     B.   As a condition to the willingness of the Grantee to enter into the\nMerger Agreement, the Grantee has required that the Company enter into, and in\norder to induce the Grantee to enter into the Merger Agreement, the Company\ndesires to enter into, this Option Agreement.\n\n                                      AGREEMENT\n\n     The parties to this Option Agreement, intending to be legally bound, agree\nas follows:\n\n     1.   CERTAIN DEFINITIONS.  Capitalized terms used but not defined in this\nOption Agreement shall have the meanings ascribed to such terms in the Merger\nAgreement.\n\n     2.   GRANT OF OPTION.  The Company hereby grants to the Grantee an\nirrevocable option (the 'Option') to purchase, out of the authorized but\nunissued Company Common Stock, a number of shares of Company Common Stock equal\nto up to 19.9% of the shares of Company Common Stock outstanding as of the date\nhereof (as adjusted as set forth herein, the 'Option Shares'), at a price per\nOption Share equal to the Exercise Price.  For purposes of this Option\nAgreement, the 'Exercise Price' shall be equal to $17.48 (subject to adjustment\nas set forth herein).\n\n     3.   TERM.  The Option shall terminate on the earliest of the following\ndates (the 'Termination Date'): (a) the date on which the Merger becomes\neffective; (b) the first anniversary of the date on which the Grantee receives\nwritten notice from the Company of the occurrence of an Exercise Event (as\ndefined in Section 4(b)); or (c) the date on which the Merger Agreement is\nvalidly terminated pursuant to Section 6.1 thereof, if an Exercise Event shall\nnot have occurred on or prior to such date; PROVIDED, HOWEVER, that with respect\nto clause (b) of this\n\n\n                                           \n\n\nsentence, if the Option cannot be exercised on such first anniversary by reason\nof any applicable law, regulation, order, judgment, decree or other legal\nimpediment, then the Termination Date shall be extended until the date 30 days\nafter the date on which such impediment is removed.  The rights and obligations\nset forth in Sections 8 and 9 shall not terminate on the Termination Date, but\nshall extend to such time as is provided in those Sections.\n\n     4.   EXERCISE OF OPTION.\n\n          (a)  The Grantee may exercise the Option, in whole or in part, at any\ntime and from time to time on or before the Termination Date following the\noccurrence of an Exercise Event (as defined in Section 4(b)).  Notwithstanding\nthe occurrence of the Termination Date, the Grantee shall be entitled to\npurchase those Option Shares with respect to which it has exercised the Option\nin accordance with the terms hereof prior to the Termination Date.\n\n          (b)  As used herein, an 'Exercise Event' shall be deemed to have\noccurred if the Grantee shall have the right to terminate the Merger Agreement:\n\n               (i)  pursuant to Section 6.1(c) thereof and a Takeover Proposal\n     shall have been previously disclosed, announced, commenced, submitted or\n     made; or\n\n               (ii) pursuant to Section 6.1(g) or 6.1(h) thereof.\n\n          (c)  In the event the Grantee wishes to exercise the Option with\nrespect to any Option Shares, the Grantee shall send to the Company a written\nnotice (the date of which being herein referred to as the 'Notice Date')\nspecifying: (i) the number of Option Shares the Grantee will purchase; (ii) the\nplace at which such Option Shares are to be purchased; and (iii) the date on\nwhich such Option Shares are to be purchased, which shall not be earlier than\ntwo business days nor later than twenty business days after the Notice Date. \nThe closing of the purchase of such Option Shares (the 'Closing') shall take\nplace at the place specified in such written notice and on the date specified in\nsuch written notice (the 'Closing Date'); PROVIDED, HOWEVER, that: (A) if such\npurchase cannot be consummated by reason of any applicable law, regulation,\norder, judgment, decree or other legal impediment, the Closing Date may be\nextended by the Grantee to a date not more than 30 days after the date on which\nsuch impediment is removed; and (B) if prior notification to or approval of any\ngovernmental authority is required (or if any waiting period must expire or be\nterminated) in connection with such purchase, the Company shall promptly cause\nto be filed the required notice or application for approval and shall\nexpeditiously process the same (and the Company shall cooperate with the Grantee\nin the filing of any such notice or application required to be filed by the\nGrantee and the obtaining of any such\n\n\n                                         -2-\n\n\napproval required to be obtained by the Grantee), and the Closing Date may be\nextended by the Grantee to a date not more than 30 days after the date on which\nany required notification has been made, approval has been obtained or waiting\nperiod has expired or been terminated. \n\n          (d)  Notwithstanding Section 4(c), so long as the Company shall have\nfully complied with all of its obligations under this Option Agreement, in no\nevent shall any Closing Date be more than 12 months after the related Notice\nDate, and, if the Closing Date shall not have occurred within 12 months after\nthe related Notice Date, the exercise of the Option effected on the Notice Date\nshall be deemed to have expired.  \n\n     5.   PAYMENT AND DELIVERY OF CERTIFICATES.\n\n          (a)  On each Closing Date, the Grantee shall pay to the Company in\nimmediately available funds by wire transfer to a bank account designated by the\nCompany an amount equal to the Exercise Price multiplied by the number of Option\nShares to be purchased on such Closing Date.\n\n          (b)  At each Closing, simultaneously with the delivery of immediately\navailable funds as provided in Section 5(a), the Company shall deliver to the\nGrantee a certificate or certificates representing the Option Shares to be\npurchased at such Closing, which Option Shares shall be duly authorized, validly\nissued, fully paid and nonassessable and free and clear of all liens, security\ninterests, charges or other encumbrances ('Encumbrances').\n\n          (c)  Certificates for the Option Shares delivered at each Closing\nshall be endorsed with a restrictive legend that shall read substantially as\nfollows:\n\n          THE TRANSFER OF THE STOCK REPRESENTED BY THIS CERTIFICATE IS SUBJECT\n          TO RESTRICTIONS ARISING UNDER THE SECURITIES ACT OF 1933, AS AMENDED,\n          AND PURSUANT TO THE TERMS OF A SHARE OPTION AGREEMENT DATED AS OF\n          FEBRUARY 28, 1999.  A COPY OF SUCH AGREEMENT WILL BE PROVIDED TO THE\n          HOLDER HEREOF WITHOUT CHARGE UPON RECEIPT BY THE COMPANY OF A WRITTEN\n          REQUEST THEREFOR.\n\nA new certificate or certificates evidencing the same number of shares of the\nCompany Common Stock will be issued to the Grantee in lieu of the certificate\nbearing the above legend, and such new certificate shall not bear such legend,\ninsofar as it applies to the Securities Act, if the Grantee shall have delivered\nto the Company a copy of a letter from the staff of the Commission, or an\nopinion of counsel in form and substance reasonably satisfactory to the Company\nand its counsel, to the effect that such legend is not required for purposes of\nthe Securities Act.\n\n\n                                         -3-\n\n\n     6.   ADJUSTMENT UPON CHANGES IN CAPITALIZATION, ETC.\n\n          (a)  In the event of any change in the Company Common Stock by reason\nof a stock divided, split-up, combination, recapitalization, exchange of shares\nor similar transaction, the type and number of shares or securities subject to\nthe Option, and the Exercise Price therefor, shall be adjusted appropriately,\nand proper provision shall be made in the agreements governing such transaction,\nso that the Grantee shall receive upon exercise of the Option the same class and\nnumber of outstanding shares or other securities or property that Grantee would\nhave received in respect of the Company Common Stock if the Option had been\nexercised immediately prior to such event or the record date therefor, as\napplicable.  If any additional shares of Company Common Stock are issued after\nthe date of this Option Agreement (other than pursuant to an event described in\nthe first sentence of this Section 6(a)), the number of shares of Company Common\nStock then remaining subject to the Option shall be adjusted so that, after such\nissuance of additional shares, such number of shares then remaining subject to\nthe Option, together with any shares theretofore issued pursuant to the Option,\nequals 19.9% of the number of shares of the Company Common Stock then issued and\noutstanding.\n\n          (b)  If the Company shall enter into an agreement (i) to consolidate,\nexchange, shares or merge with any Person, other than the Grantee or one of the\nGrantee's subsidiaries, and, in the case of a merger, shall not be the\ncontinuing or surviving corporation, (ii) to permit any Person, other than the\nGrantee or one of the Grantee's subsidiaries, to merge into the Company and the\nCompany shall be the continuing or surviving corporation, but, in connection\nwith such merger, the then outstanding shares of Company Common Stock shall be\nchanged into or exchanged for stock or other securities of the Company or any\nother Person or cash or any other property, or the shares of Company Common\nStock outstanding immediately before such merger shall after such merger\nrepresent less than 50% of the common shares and common share equivalents of the\nCompany outstanding immediately after the merger, or (iii) to sell, lease or\notherwise transfer all or substantially all of its assets to any Person, other\nthan the Grantee or one of the Grantee's subsidiaries, then, and in each such\ncase, proper provision shall be made in the agreement governing such\ntransactions so that the Option shall, upon the consummation of any such\ntransaction and upon the terms and conditions set forth herein, become\nexercisable for the stock, securities, cash or other property that would have\nbeen received by the Grantee if the Grantee had exercised this Option\nimmediately prior to such transaction or the record date for determining the\nstockholders entitled to participate therein, as appropriate.\n\n          (c)  The provisions of Sections 7, 8 and 9 shall apply with\nappropriate adjustments to any securities for which the Option becomes\nexercisable pursuant to this Section 6.\n\n\n                                         -4-\n\n\n     7.   REPURCHASE AT THE OPTION OF GRANTEE.\n\n          (a)  At any time on or prior to the Termination Date, at the request\nof the Grantee made at any time after the first Exercise Event and ending on the\nfirst anniversary thereof (the 'Put Period'), the Company (or any successor\nthereto) shall repurchase from the Grantee (i) that portion of the Option that\nthen remains unexercised and (ii) all (but not less than all) of the shares of\nCompany Common Stock purchased by the Grantee pursuant hereto and with respect\nto which the Grantee then has beneficial ownership.  The date on which the\nGrantee exercises its rights under this Section 7 is referred to as the 'Grantee\nRequest Date.' Such repurchase shall be at an aggregate price (the 'Section 7\nRepurchase Consideration') equal to the sum of:\n\n               (i)  the aggregate exercise price paid (or, in the case of Option\n     Shares with respect to which the Option has been exercised but the Closing\n     Date has not occurred, payable) by the Grantee for any Option Shares as to\n     which the Option has theretofore been exercised and with respect to which\n     the Grantee then has beneficial ownership or has exercised the right to\n     acquire beneficial ownership;\n\n               (ii) the excess, if any, of the Applicable Price (as defined in\n     Section 7(c)), over the Exercise Price (subject to adjustment pursuant to\n     Section 6) paid (or, in the case of Option Shares with respect to which the\n     Option has been exercised but the Closing Date has not occurred, payable)\n     by the Grantee for each Option Share as to which the Option has been\n     exercised and with respect to which the Grantee then has beneficial\n     ownership, multiplied by the number of such shares; and\n\n               (iii) the excess, if any, of (x) the Applicable Price for each\n     share of Company Common Stock over (y) the Exercise Price (subject to\n     adjustment pursuant to Section 6), multiplied by the number of Option\n     Shares as to which the Option has not been exercised.\n\n          (b)  If the Grantee exercises its rights under this Section 7, the\nCompany shall, within five business days after the Grantee Request Date, pay the\nSection 7 Repurchase Consideration to the Grantee in immediately available\nfunds, and the Grantee shall surrender to the Company the Option and the\ncertificates evidencing the shares of Company Common Stock purchased thereunder\nwith respect to which the Grantee then has beneficial ownership, and the Grantee\nshall warrant to the Company that, immediately prior to the repurchase thereof\npursuant to this Section 7, the Grantee had sole record and beneficial ownership\nof such shares and that such shares were then held free and clear of all\nEncumbrances.\n\n          (c)  For purposes of this Option Agreement, the 'Applicable Price'\nmeans the highest of (i) the highest purchase\n\n\n                                         -5-\n\n\nprice per share paid pursuant a tender or exchange offer made for shares of\nCompany Common Stock after the date hereof and on or prior to the Grantee\nRequest Date, (ii) the price per share to be paid by any third Person for shares\nof Company Common Stock pursuant to an agreement for a merger or other business\ncombination transaction with the Company entered into on or prior to the Grantee\nRequest Date, or (iii) the highest bid price per share of Company Common Stock\nas quoted on The Nasdaq National Market (or if Company Common Stock is not\nquoted on The Nasdaq National Market, the highest bid price per share as quoted\non any other market comprising a part of The Nasdaq Stock Market or, if the\nshares of Company Common Stock are not quoted thereon, on the principal trading\nmarket (as defined in Regulation M under the Exchange Act) on which such shares\nare traded as reported by a recognized source) during the 60 business days\npreceding the Grantee Request Date.  If the consideration to be offered, paid or\nreceived pursuant to either of the foregoing clauses (i) or (ii) shall be other\nthan in cash, the value of such consideration shall be determined in good faith\nby an independent nationally recognized investment banking firm selected by the\nGrantee and reasonably acceptable to the Company, which determination shall be\nconclusive for all purposes of this Option Agreement.\n\n     8.   REGISTRATION RIGHTS.\n\n          (a)  The Company shall, if requested by the Grantee at any time and\nfrom time to time within two years of the first exercise of the Option (the\n'Registration Period'), as expeditiously as practicable, prepare, file and cause\nto be made effective up to two registration statements under the Securities Act\nif such registration is necessary or desirable in order to permit the offering,\nsale and delivery of any or all shares of Company Common Stock or other\nsecurities that have been acquired by or are issuable to the Grantee upon\nexercise of the Option in accordance with the intended method of sale or other\ndisposition stated by the Grantee, including, at the sole discretion of the\nCompany, a 'shelf' registration statement under Rule 415 under the Securities\nAct or any successor provision, and the Company shall use all reasonable efforts\nto qualify such shares or other securities under any applicable state securities\nlaws.  Without the Grantee's prior written consent, no other securities may be\nincluded in any such registration.  The Company shall use all reasonable efforts\nto cause each such registration statement to become effective, to obtain all\nconsents or waivers of other parties that are required therefor and to keep such\nregistration effective for such period not in excess of 180 days from the day\nsuch registration statement first becomes effective as may be as reasonably\nnecessary to effect such sale or other disposition.  The obligations of the\nCompany hereunder to file a registration statement and to maintain its\neffectiveness may be suspended for one or more periods of time not exceeding 60\ndays in the aggregate if the Board of Directors of the Company shall have\ndetermined in good faith that the filing of such registration or the maintenance\nof its effectiveness would require disclosure of\n\n\n                                         -6-\n\n\nnonpublic information that would materially and adversely affect the Company. \nFor purposes of determining whether two requests have been made under this\nSection 8, only requests relating to a registration statement that has become\neffective under the Securities Act and pursuant to which the Grantee has\ndisposed of all shares covered thereby in the manner contemplated therein shall\nbe counted.\n\n          (b)  The expenses associated with the preparation and filing of any\nsuch registration statement pursuant to this Section 8 and any sale covered\nthereby (including any fees related to blue sky qualifications and filing fees\nin respect of the National Association of Securities Dealers, Inc.)\n('Registration Expenses') shall be for the account of the Company except for\nunderwriting discounts or commissions or brokers' fees in respect to shares to\nbe sold by the Grantee and the fees and disbursement of the Grantee's counsel;\nPROVIDED, HOWEVER, that the Company shall not be required to pay for any\nRegistration Expenses with respect to such registration if the registration\nrequest is subsequently withdrawn at the request of the Grantee unless the\nGrantee agrees to forfeit its right to request one registration; AND PROVIDED\nFURTHER that, if at the time of such withdrawal the Grantee has learned of a\nmaterial adverse change in the results of operations, condition (financial or\nother), business or prospects of the Company from that known to the Grantee at\nthe time of its request and has withdrawn the request with reasonable promptness\nfollowing disclosure by the Company of such material adverse change, then the\nGrantee shall not be required to pay any of such expenses and shall retain all\nremaining rights to request registration.\n\n          (c)  The Grantee shall provide all information reasonably requested by\nthe Company for inclusion in any registration statement to be filed hereunder. \nIf during the Registration Period the Company shall propose to register under\nthe Securities Act the offering, sale and delivery of Company Common Stock for\ncash for its own account or for any other the Company of the Company pursuant to\na firm underwriting, it shall, in addition to the Company's other obligations\nunder this Section 8, allow the Grantee the right to participate in such\nregistration provided that the Grantee participates in the underwriting;\nPROVIDED, HOWEVER, that, if the managing underwriter of such offering advises\nthe Company in writing that in its opinion the number of shares of Company\nCommon Stock requested to be included in such registration exceeds the number\nthat can be sold in such offering, the Company shall, after fully including\ntherein all securities to be sold by the Company, include the shares requested\nto be included therein by Grantee pro rata (based on the number of shares\nintended to be included therein) with the shares intended to be included therein\nby Persons other than the Company.  In connection with any offering, sale and\ndelivery of Company Common Stock pursuant to a registration statement effected\npursuant to this Section 8, the Company and the Grantee shall provide each\n\n\n                                         -7-\n\n\nother and each underwriter of the offering with customary representations,\nwarranties and covenants, including covenants of indemnification and\ncontribution.\n\n     9.   FIRST REFUSAL.  At any time after the first occurrence of an Exercise\nEvent and prior to the second anniversary of the first purchase of shares of\nCompany Common Stock pursuant to the Option, if the Grantee shall desire to\nsell, assign, transfer or otherwise dispose of all or any of the Option Shares\nor other securities acquired by it pursuant to the Option, it shall give the\nCompany written notice of the proposed transaction (an 'Offeror's Notice'),\nidentifying the proposed transferee, accompanied by a copy of a binding offer to\npurchase such shares or other securities signed by such transferee and setting\nforth the terms of the proposed transaction.  An Offeror's Notice shall be\ndeemed an offer by the Grantee to the Company, which may be accepted, in whole\nbut not in part, within ten business days of the receipt of such Offeror's\nNotice, on the same terms and conditions and at the same price at which the\nGrantee is proposing to transfer such shares or other securities to such\ntransferee.  The purchase of any such shares or other securities by the Company\nshall be settled within ten business days of the date of the acceptance of the\noffer and the purchase price shall be paid to the Grantee in immediately\navailable funds.  If the Company shall fail or refuse to purchase all the shares\nor other securities covered by an Offeror's Notice, the Grantee may, within\nsixty days from the date of the Offeror's Notice, sell all but not less them\nall, of such shares or other securities to the proposed transferee at no less\nthan the price specified and on terms no more favorable than those set forth in\nthe Offeror's Notice; PROVIDED, HOWEVER, that the provisions of this sentence\nshall not limit the rights the Grantee may otherwise have if the Company has\naccepted the offer contained in the Offeror's Notice and wrongfully refuses to\npurchase the shares or other securities subject thereto.  The requirements of\nthis Section 9 shall not apply to (a) any disposition as a result of which the\nproposed transferee would own beneficially not more than 4.9% of the outstanding\nvoting power of the Company, (b) any disposition of Company Common Stock or\nother securities by a Person to whom the Grantee has assigned its rights under\nthe Option with the consent of the Company, (c) any sale by means of a public\noffering registered under the Securities Act or (d) any transfer to a wholly\nowned subsidiary of the Grantee which agrees in writing to be bound by the terms\nhereof.\n\n     10.  PROFIT LIMITATION.  Notwithstanding any provision to the contrary\ncontained in this Option Agreement, the Grantee may not exercise its rights\npursuant to this Option Agreement in a manner that would result in a cash\npayment to the Grantee of an aggregate amount under this Option Agreement and\nunder Section 7.1(c) of the Merger Agreement of more than the sum of (a) the\naggregate exercise price paid by the Grantee for any Option Shares as to which\nthe Option has theretofore been exercised, PLUS (b) $18,000,000, it being\nunderstood and agreed that to the\n\n\n                                         -8-\n\n\nextent that any amount is paid by the Company to the Grantee pursuant to this\nOption Agreement, the fee payable pursuant to Section 7(c) of the Merger\nAgreement shall be reduced appropriately so that the aggregate amount payable by\nthe Company under this Option Agreement and Section 7(c) of the Merger Agreement\nshall not exceed such sum.\n\n     11.  LISTING.  If at the time of the occurrence of an Exercise Event the\nCompany Common Stock is (or any other securities subject to the Option are) then\nlisted on The Nasdaq National Market or on any other market or exchange, the\nCompany, upon the occurrence of an Exercise Event, shall promptly file an\napplication to list on The Nasdaq National Market and on such other market or\nexchange the shares of the Company Common Stock or other securities then subject\nto the Option, and shall use all reasonable efforts to cause such listing\napplication to be approved as promptly as practicable.\n\n     12.  REPLACEMENT OF AGREEMENT.  Upon receipt by the Company of evidence\nreasonably satisfactory to it of the loss, theft, destruction or mutilation of\nthis Option Agreement, and (in the case of loss, theft or destruction) of\nreasonably satisfactory indemnification, and upon surrender and cancellation of\nthis Option Agreement, if mutilated, the Company will execute and deliver a new\nOption Agreement of like tenor and date.  \n\n     13.  MISCELLANEOUS.\n\n          (a)  EXTENSION; WAIVER.  At any time prior to the Termination Date,\nthe parties hereto may (i) extend the time for the performance of any of the\nobligations or other acts of the other parties hereto, or (ii) waive compliance\nwith any of the agreements or conditions contained herein.  Any agreement on the\npart of any party to any such extension or waiver shall be valid only if set\nforth in an instrument in writing signed on behalf of such party.  Except as\nprovided in this Option Agreement, no action taken pursuant to this Option\nAgreement shall be deemed to constitute a waiver by the party taking such action\nof compliance with any covenants or agreements contained in this Option\nAgreement.  The waiver by any party hereto of a breach of any provision\nhereunder shall not operate or be construed as a waiver of any prior or\nsubsequent breach of the same or any other provision hereunder.\n\n          (b)  NOTICES.  All notices, requests, demands, waivers and other\ncommunications required or permitted to be given under this Option Agreement\nshall be in writing and shall be deemed to have been duly given if delivered in\nperson or mailed, certified or registered mail with postage prepaid, or sent by\ntelex, telegram or telecopier, as follows:\n\n\n                                         -9-\n\n\n                         if to the Company, to it at:\n\n                         NeXstar Pharmaceuticals, Inc.\n                         2860 Wilderness Place\n                         Boulder, Colorado 80301\n                         Attention: Chief Financial Officer\n                         Telecopy No.: (303) 546-7603\n\n                         with a copy to:\n\n                         Willkie Farr &amp; Gallagher\n                         787 Seventh Avenue\n                         New York, New York 10019\n                         Attention: Peter H. Jakes, Esq.\n                         Telecopy No.: (212) 728-8111\n\n                         if to either Parent or Sub, to it at:\n\n                         Gilead Sciences, Inc\n                         333 Lakeside Drive\n                         Foster City, CA 94404\n                         Attn:  General Counsel\n\n                         Telecopy No. : (650) 522-5622\n\n                         with a copy to:\n\n                         Cooley Godward LLP\n                         Five Palo Alto Square\n                         3000 E1 Camino Real\n                         Palo Alto, CA 94306-2155\n                         Attention:  Richard E. Climan, Esq.\n                                     Keith A. Flaum, Esq.\n                         Telecopy No.:  (650) 857-0663\n\nor to such other Person or address as any party shall specify by notice in\nwriting to each of the other parties.  All such notices, requests, demands,\nwaivers and communications shall be deemed to have been received on the date of\ndelivery unless if mailed, in which case on the third business day (fifth\nbusiness day, if mailed outside the country of the recipient) after the mailing\nthereof except for a notice of a change of address, which shall be effective\nonly upon receipt thereof.\n\n          (c)  ENTIRE AGREEMENT.  This Option Agreement and the other documents\nreferred to herein or delivered pursuant hereto collectively contain the entire\nunderstanding of the parties hereto with respect to the subject matter contained\nherein and therein and supersede all prior agreements and understandings, oral\nand written, with respect thereto.\n\n          (d)  BINDING EFFECT; BENEFIT; ASSIGNMENT.  This Option Agreement shall\ninure to the benefit of and be binding upon the parties hereto and their\nrespective successors and permitted\n\n\n                                         -10-\n\n\nassigns, but neither this Option Agreement nor any of the rights, interest or\nobligations hereunder shall be assigned by any of the parties hereto without the\nprior written consent of the other parties.  Notwithstanding anything contained\nin this Option Agreement to the contrary, nothing in this Option Agreement,\nexpressed or implied, is intended to confer on any Person other than the parties\nhereto or their respective successors and assigns any rights, remedies,\nobligations or liabilities under or by reason of this Option Agreement.\n\n          (e)  AMENDMENT AND MODIFICATION.  Subject to applicable law, this\nOption Agreement may be amended, modified and supplemented, or provisions hereof\nwaived, in writing by the parties hereto in any and all respects before the\nTermination Date, by action taken by the respective Boards of Directors of the\nCompany or the Grantee or by the respective officers authorized by such Boards\nof Directors.  This Option Agreement may not be amended except by an instrument\nin writing signed on behalf of each of the parties hereto.\n\n          (f)  FURTHER ACTIONS.  Each of the parties hereto agrees that, subject\nto its legal obligations, it will use its reasonable efforts to do all things\nreasonably necessary to consummate the transactions contemplated hereby.\n\n          (g)  HEADINGS.  The descriptive headings of the several Sections of\nthis Option Agreement are inserted for convenience only, do not constitute a\npart of this Option Agreement and shall not affect in any way the meaning or\ninterpretation of this Option Agreement.\n\n          (h)  COUNTERPARTS.  This Option Agreement may be executed in several\ncounterparts, each of which shall be deemed to be an original, and all of which\ntogether shall be deemed to be one and the same instrument.\n\n          (i)  APPLICABLE LAW.  This Option Agreement and the legal relations\nbetween the parties hereto shall be governed by and construed in accordance with\nthe laws of the State of Delaware, without regard to the conflict of laws rules\nthereof.\n\n          (j)  SEVERABILITY.  If any term, provision, covenant or restriction\ncontained in this Option Agreement is held by a court of competent jurisdiction\nor other authority to be invalid, void, unenforceable or against its regulatory\npolicy, the remainder of the terms, provisions, covenants and restrictions\ncontained in this Option Agreement shall remain in full force and effect and\nshall in no way be affected, impaired or invalidated.\n\n          (k)  ENFORCEMENT OF AGREEMENT.  The parties hereto agree that\nirreparable damage would occur in the event that any of the provisions of this\nOption Agreement was not performed in accordance with its specific terms or was\notherwise breached.  It is accordingly agreed that the parties shall be entitled\nto an\n\n\n                                         -11-\n :  PAGE&gt;\n\ninjunction or injunctions to prevent breaches of this Option Agreement and to\nenforce specifically the terms and provisions hereof in any Delaware Court, this\nbeing in addition to any other remedy to which they are entitled at law or in\nequity.\n\n          (l)  SUBMISSION TO JURISDICTION.  With respect to any suit, action or\nproceeding initiated by a party to this Option Agreement arising out of, under\nor in connection with this Option Agreement, the Company and the Grantee each\nhereby submit to the non-exclusive jurisdiction of any state or federal court\nsitting in the State of Delaware and irrevocably waive, to the fullest extent\npermitted by law, any objection that they may now have or hereafter obtain to\nthe laying of venue in any such court in any such suit, action or proceeding.\n\n          (m)  ATTORNEYS' FEES. If any suit, action or proceeding relating to\nthis Option Agreement or the enforcement of any provision of this Option\nAgreement is brought against the Company, the prevailing party shall be entitled\nto recover reasonable attorneys' fees, costs and disbursements (in addition to\nany other relief to which the prevailing party may be entitled).\n\n          (n)  NON-EXCLUSIVITY.  The rights and remedies of the Grantee under\nthis Option Agreement are not exclusive of or limited by any other rights or\nremedies which it may have, whether at law, in equity, by contract or otherwise,\nall of which shall be cumulative (and not alternative).  Without limiting the\ngenerality of the foregoing, the rights and remedies of the Grantee under this\nOption Agreement, and the obligations and liabilities of the Company under this\nOption Agreement, are in addition to their respective rights, remedies,\nobligations and liabilities under common law requirements and under all\napplicable statutes, rules and regulations. The covenants and obligations of the\nCompany set forth in this Option Agreement shall be construed as independent of\nany other agreement or arrangement between the Company, on the one hand, and the\nGrantee, on the other.  The existence of any claim or cause of action by the\nCompany against the Grantee shall not constitute a defense to the enforcement of\nany of such covenants or obligations against the Company.\n\n\n\n\n                                         -12-\n\n\n          IN WITNESS WHEREOF, the Company and the Grantee have caused this\nOption Agreement to be signed by their respective officers thereupon duly\nauthorized, all as of the day and year first written above.\n\n\n\n                              GILEAD SCIENCES, INC.:\n\n                              By: \/s\/ Mark L. Perry\n                                 -----------------------------\n                              Name: Mark L. Perry\n                                   ---------------------------\n                              Title: Senior Vice President and\n                                     Chief Financial Officer\n                                    --------------------------\n\n                              NEXSTAR PHARMACEUTICALS, INC.:\n\n                              By: \/s\/ Michael E. Hart\n                                 -----------------------------\n                              Name: Michael E. Hart\n                                   ---------------------------\n                              Title: Vice President and\n                                     Chief Financial Officer\n                                    --------------------------\n\n\n                                         -13-\n\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":[9622,9626],"class_list":["post-43605","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-gilead-sciences-inc","corporate_contracts_industries-drugs__biotech","corporate_contracts_types-planning","corporate_contracts_types-planning__merger"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43605","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=43605"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43605"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43605"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43605"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}