Exhibit 10.24
SECTION 16
OFFICERS
GILEAD SCIENCES,
INC.
PERFORMANCE SHARE AWARD
AGREEMENT
RECITALS
A. The Corporation has implemented
the Plan for the purpose of providing incentives to attract, retain
and motivate eligible Employees, Directors and Consultants to
continue their service relationship with the
Corporation.
B. Participant is to render valuable
services to the Corporation (or a Related Entity), and this
Agreement is executed pursuant to, and is intended to carry out the
purposes of, the Plan in connection with the Corporation’s
issuance of shares of Common Stock to Participant
thereunder.
C. All capitalized terms in this
Agreement shall have the meaning assigned to them in the attached
Appendix A.
NOW, THEREFORE
, it is hereby agreed as
follows:
1. Grant of Restricted Stock
Units . The Corporation hereby awards to Participant, as of
the Award Date indicated below, an award (the “Award”)
of Performance Shares under the Corporation’s 2004 Equity
Incentive Plan, as amended (the “Plan”). Each
Performance Share which vests pursuant to the terms of this
Agreement shall provide Participant with the right to receive one
or more shares of Common Stock on the designated issuance date. The
number of shares of Common Stock subject to the awarded Performance
Shares, the applicable performance vesting requirement for those
shares, the date on which those vested shares of Common Stock shall
become issuable and the remaining terms and conditions governing
the Award, including the applicable service vesting requirement,
shall be as set forth in this Agreement.
AWARD SUMMARY
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Participant
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__________________________________
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Award Date:
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__________,
200__
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Designated Number of Performance
Shares:
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The actual
number of shares of Common Stock that may become issuable pursuant
to the Performance Shares awarded under this Agreement shall be
determined in accordance with the Vesting Schedule below. For
purposes of the percentage calculations set forth in the
Performance Vesting section of such schedule, the designated number
of Performance Shares to be utilized is ______ shares.
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Vesting Schedule:
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The number of
shares of Common Stock which may actually vest and become issuable
pursuant to the Award shall be determined pursuant to a two-step
process: (i) first the maximum number of shares of Common
Stock in which Participant can vest under the Performance Vesting
section below shall be calculated on the basis of the level at
which each of the Performance Goals specified on attached Schedule
I is actually attained and (ii) then the number of shares
calculated under clause (i) in which Participant may actually
vest shall be determined on the basis of his or her completion of
the applicable Continuous Service vesting requirements set forth in
Paragraph 3 of this Agreement.
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Performance
Vesting: Attached
Schedule I specifies the two Performance Goals to be attained for
the specified Performance Period. Within seventy-five
(75) days after the completion of that Performance Period, the
Administrator shall determine and certify the actual level of
attainment for each Performance Goal. On the basis of that
certified level of attainment, the number of Performance Shares
will be multiplied by the applicable percentage (which may range
from 0% to 200%) determined in accordance with the percentile
matrix set forth in Schedule I. The number of shares resulting from
such calculation shall constitute the maximum number of shares of
Common Stock in which Participant may vest under this Award and
shall be designated the “Performance-Qualified Shares.”
In no event may the number of such Performance-Qualified Shares
exceed 200% of the number of Performance Shares specified in the
Number of Performance Shares section above.
To the extent any Performance Goal
is attained at a level below the twentieth percentile, a portion of
the Performance Shares, as determined in accordance with the
percentile matrix set forth in Schedule I, may be forfeited, and
any such forfeited Performance Shares shall be immediately
cancelled. Participant shall thereupon cease to have any further
right, title or interest in the shares of Common Stock underlying
those cancelled Performance Shares.
Continuous Service
Vesting. The number
of Performance-Qualified Shares in which Participant actually vests
shall be determined on the basis of his or her satisfaction of the
Continuous-Service vesting requirements set forth in
Paragraph 3.
Change in Control
Vesting. The shares
of Common Stock underlying the Performance Shares subject to this
Award may also vest on an accelerated basis in accordance with
Paragraph 5 should a Change in Control occur prior to the
completion of the Performance Period.
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Issuance Date:
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The shares of
Common Stock which actually vest and become issuable pursuant to
the terms of this Agreement shall be issued in accordance with the
provisions of this Agreement applicable to the particular
circumstances under which such vesting occurs.
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2. Limited
Transferability . Prior to the actual issuance of the
shares of Common Stock which vest hereunder, Participant may not
transfer any interest in the Performance Shares subject to this
Award or the underlying shares of Common Stock or pledge or
otherwise hedge the sale of those Performance Shares or underlying
shares, including (without limitation) any short sale or any
acquisition or disposition of any put or call option or other
instrument tied to the value of the underlying shares of Common
Stock. However, any shares of Common Stock which vest hereunder but
otherwise remain unissued at the time of Participant’s death
may be transferred pursuant to the provisions of
Participant’s will or the laws of inheritance or to
Participant’s designated beneficiary or beneficiaries of this
Award. Participant may also direct the Corporation to record the
ownership of any shares of Common Stock which in fact vest and
become issuable hereunder in the name of a revocable living trust
established for the exclusive benefit of Participant or Participant
and his or her spouse. Participant may make such a beneficiary
designation or ownership directive at any time by completing the
Corporation’s Universal Beneficiary Designation form and
filing the completed form with the Plan Administrator or its
designee.
3. Continuous Service
Requirement . The number of Performance-Qualified Shares
calculated in accordance with the Performance-Vesting provisions of
Paragraph 1 and attached Schedule I represent the maximum number of
shares of Common Stock in which Participant can vest hereunder. The
actual number of shares of Common Stock in which Participant shall
vest shall be determined as follows:
- If Participant remains in
Continuous Service through the date following the completion of the
Performance Period on which the Administrator certifies the
attained level of the Performance Goals for that Performance
Period, Participant shall vest in one hundred percent
(100%) of the Performance-Qualified Shares.
- If Participant’s Continuous
Service terminates prior to the completion of the Performance
Period (or after the completion of the Performance Period but
before the date the Administrator certifies the attained level of
the Performance Goals for that Performance Period) by reason of
death or Permanent Disability, then Participant shall, following
the completion of the Performance Period, vest in that number of
shares of Common Stock (if any) determined by multiplying the
maximum number of Performance-Qualified Shares in which Participant
could vest, based on the actual level at which the Performance
Goals are attained and certified for the Performance Period, by a
fraction, the numerator
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of which is the number of months of
Continuous Service actually completed by Participant in such
Performance Period (rounded to the closest whole month), and the
denominator of which is the number of months (rounded to the
closest whole number) constituting the entire Performance
Period.
- If Participant’s Continuous
Service terminates by reason of his or her Retirement at any time
after the completion of the first twelve (12) months of the
Performance Period but prior to the completion of the entire
Performance Period, then Participant shall, following the
completion of the Performance Period, vest in that number of shares
of Common Stock (if any) determined by multiplying the maximum
number of Performance-Qualified Shares in which Participant could
vest, based on the actual level at which the Performance Goals are
attained and certified for the Performance Period, by a fraction,
the numerator of which is the number of months of Continuous
Service actually completed by Participant in such Performance
Period prior to his or her Retirement (rounded to the closest whole
month), and the denominator of which is the number of months
(rounded to the closest whole number) constituting the entire
Performance Period.
- If Participant’s Continuous
Service ceases for any other reason (including, without limitation,
any deemed cessation of Continuous Service under Paragraph 10)
prior to the completion of the Performance Period or prior to the
date on which the Administrator certifies the attained level of the
Performance Goals for that Performance Period, then Participant
shall not vest in any of the Performance-Qualified Shares, and all
of Participant’s right, title and interest to the shares of
Common Stock subject to this Award shall immediately terminate;
provided, however, that should a Change in Control
occur prior to the completion of the Performance Period, then the
provisions of Paragraph 5 shall govern the vesting of the
Performance Shares.
4. Stockholder Rights and
Dividend Equivalents
(a) The holder of this Award shall
not have any stockholder rights, including voting, dividend or
liquidation rights, with respect to the shares of Common Stock
subject to the Award until Participant becomes the record holder of
those shares upon their actual issuance following the
Corporation’s collection of the applicable Withholding
Taxes.
(b) Notwithstanding the foregoing,
should any dividend or other distribution, whether regular or
extraordinary and whether payable in cash, securities (other than
Common Stock) or other property, be declared and paid on the
outstanding Common Stock while one or more Performance Shares
remain subject to this Award (i.e., the underlying shares of Common
Stock are not otherwise issued and outstanding for purposes of
entitlement to the dividend or distribution), then a special book
account shall be established for Participant and credited with a
phantom dividend equivalent to the actual dividend or distribution
that would have been paid on the maximum number of shares of Common
Stock that can qualify as Performance-Qualified Shares under this
Award, had that number of shares been issued and
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outstanding and entitled to that dividend or
distribution. As one or more shares of Common Stock subsequently
vest hereunder upon the satisfaction of the applicable vesting
requirements, the phantom dividend equivalents credited to those
particular shares in the book account shall vest and shall be
distributed to Participant (in the same form the actual dividend or
distribution was paid to the holders of the Common Stock entitled
to that dividend or distribution or in such other form as the
Administrator deems appropriate under the circumstances)
concurrently with the issuance of those vested shares. However,
such distribution shall be subject to the Corporation’s
collection of the Withholding Taxes applicable to that
distribution.
(c) To the extent the maximum number
of shares of Common Stock that can qualify as Performance-Qualified
Shares under this Award are not in fact earned by reason of the
levels at which the Performance Goals are actually attained, then
the phantom dividend equivalents credited to those unearned shares
shall be cancelled, and Participant shall cease to have any right
or entitlement to receive any distributions or other amounts with
respect to those cancelled dividend equivalents.
(d) Should Participant cease
Continuous Service without vesting in one or more of the shares of
Common Stock subject to this Award (including any shares which do
not otherwise vest at that time after taking into account any
applicable vesting acceleration provisions set forth in Paragraphs
3 and 5 of this Agreement), then the phantom dividend equivalents
credited to those unvested shares shall be cancelled, and
Participant shall thereupon cease to have any further right or
entitlement to those cancelled amounts.
5. Change in Control .
The following provisions shall apply only to the extent a Change in
Control is consummated prior to the completion of the Performance
Period and shall have no force or effect in the event the effective
date of the Change in Control occurs after the completion of such
Performance Period.
(a) Should (i) the Change in
Control occur within the first twelve (12) months of the
Performance Period and (ii) Participant remain in Continuous
Service through the effective date of that Change in Control, then
Participant shall immediately vest in that number of shares of
Common Stock equal to the designated number of Performance Shares
set forth in Paragraph 1, without any measurement of Performance
Goal attainment to date.
(b) Should (i) the Change in
Control occur at any time on or after the completion of the first
twelve (12) months of the Performance Period and
(ii) Participant remain in Continuous Service through the
effective date of that Change in Control, then Participant shall
immediately vest in that number of shares of Common Stock equal to
the greater of:
(i) the designated number of
Performance Shares set forth in Paragraph 1, or
(ii) the number of
Performance-Qualified Shares determined by multiplying (A) the
number of Performance Shares set forth in Paragraph 1 by
(B) the applicable percentage (determined in accordance with
the percentile matrix in attached Schedule I) for the levels at
which the Performance
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Goals are attained over an
abbreviated Performance Period ending with the close of the
Corporation’s fiscal quarter coincident with or immediately
preceding the effective date of the Change in Control.
(c) The provisions of subparagraphs
(a) and (b) of this Paragraph 5 shall also apply should
Participant’s Continuous Service terminate, by reason of an
involuntary termination other than for Cause or his or her
resignation due to Constructive Termination, at any time during the
period beginning with the execution date of the definitive
agreement for the Change in Control transaction and ending with the
earlier of (i) the effective date of that Change
in Control or (ii) the termination of the definitive agreement
without the consummation of the Change in Control; provided,
however , that in no event shall Participant become
entitled to any shares of Common Stock pursuant to this Paragraph 5
if the Change in Control is not in fact consummated.
(d) Should Participant cease
Continuous Service during the Performance Period by reason of death
or Permanent Disability and a Change in Control subsequently occur
prior to the completion of that Performance Period, then the
Participant shall, at the time of such Change in Control, vest in a
pro-rated number of shares of Common Stock calculated by
multiplying (i) the number of Performance Shares or
Performance-Qualified Shares determined in accordance with the
applicable provisions of subparagraphs (a) and (b) of
this Paragraph 5 by (ii) a fraction, the numerator of which is
the number of months of Continuous Service actually completed by
Participant in such Performance Period (rounded to the closest
whole month), and the denominator of which is the number of months
(rounded to the closest whole number) comprising the portion of the
Performance Period ending with the earlier of (i) the
effective date of the Change in Control or (ii) the last day
of the abbreviated Performance Period (if any) taken into account
under Paragraph 5(b)(ii).
(e) Should Participant cease
Continuous Service by reason of his or her Retirement at any time
after the completion of the first twelve (12) months of the
Performance Period but prior to the completion of the entire
Performance Period and a Change in Control subsequently occur prior
to the completion of that Performance Period, then the Participant
shall, at the time of such Change in Control, vest in a pro-rated
number of shares of Common Stock calculated by multiplying
(i) the number of Performance Shares or Performance-Qualified
Shares determined in accordance with the provisions of subparagraph
(b) of this Paragraph 5 by (ii) a fraction, the numerator
of which is the number of months of Continuous Service actually
completed by Participant in such Performance Period prior to his or
her Retirement (rounded to the closest whole month), and the
denominator of which is the number of months (rounded to the
closest whole number) comprising the portion of the Performance
Period ending with the last day of the abbreviated Performance
Period (if any) taken into account under Paragraph
5(b)(ii).
(f) The number of shares of Common
Stock in which Participant vests on the basis of the Performance
Shares or Performance-Qualified Shares determined in accordance
with the foregoing provisions of this Paragraph 5 shall be issued
on the effective date of such Change in Control or as soon as
administratively practicable thereafter, but in no event more than
fifteen (15) business days after such effective date.
Alternatively, those vested shares
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of Common Stock shall be converted into the
right to receive the same consideration per share of Common Stock
payable to the other stockholders of the Corporation in
consummation of the Change in Control, and such consideration shall
be distributed to Participant within fifteen (15) business
days following the effective date of that Change in Control. Each
issuance or distribution made under this Paragraph 5(c) shall be
subject to the Corporation’s collection of the applicable
Withholding Taxes.
(g) Except for the actual number of
shares of Common Stock in which Participant vests in accordance
with this Paragraph 5, Participant shall have cease to have
any further right or entitlement to any additional shares of Common
Stock under this Agreement following the effective date of the
Change in Control.
(h) This Agreement shall not in any
way affect the right of the Corporation to adjust, reclassify,
reorganize or otherwise change its capital or business structure or
to merge, consolidate, dissolve, liquidate or sell or transfer all
or any part of its business or assets.
6. Adjustment in Shares
. Should any change be made to the Common Stock by reason of
any stock split, stock dividend, recapitalization, combination of
shares, exchange of shares, spin-off transaction, extraordinary
dividend or distribution or other change affecting the outstanding
Common Stock as a class without the Corporation’s receipt of
consideration, or should the value of the outstanding shares of
Common Stock be substantially reduced as a result of a spin-off
transaction or an extraordinary dividend or distribution, or should
there occur any merger, consolidation or other reorganization, then
equitable adjustments shall be made by the Administrator to the
total number and/or class of securities issuable pursuant to this
Award in order to reflect such change. In making such equitable
adjustments, the Administrator shall take into account any amounts
credited to Participant’s book account under Paragraph 4(b)
in connection with the transaction, and the determination of the
Administrator shall be final, binding and conclusive. In the event
of any Change in Control transaction, the provisions of Paragraph 5
shall be controlling.
7. Issuance or Distribution of
Vested Shares or Other Amounts .
(a) Except as otherwise provided in
Paragraph 5, the shares of Common Stock in which Participant vests
pursuant to the Performance and Continuous Service vesting
provisions of Paragraphs 1 and 3 shall be issued following the
completion of the Performance Period, in accordance with the
following provisions:
(i) If the applicable Performance
Period is coincidental with one or more successive complete
calendar years, the issuance shall be effected during the period
beginning with the first business day of the calendar year
immediately succeeding the end of the Performance Period and ending
no later than March 15 of that year.
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(ii) If the applicable Performance
Period ends on a date other than the last day of the calendar year,
then the issuance shall be effected as soon as administratively
practicable following the completion of that Performance Period,
but no later than the later of (A) the last day
of the calendar year in which such Performance Period ends or (B
the fifteenth (15th) day of third (3rd) calendar month
following the last of day of such Performance Period.
(b) The Corporation shall, on the
applicable issuance date, issue to or on behalf of Participant a
certificate (which may be in electronic form) for the shares of
Common Stock in which Participant vests pursuant to the Performance
and Continuous Service vesting provisions of Paragraphs 1 and 3 or
the special vesting provisions of Paragraph 5 and shall
concurrently distribute to the Participant any phantom dividend
equivalents with respect to those Shares.
(c) Except as otherwise provided in
Paragraph 5, no shares of Common Stock shall be issued prior to the
completion of the Performance Period. No fractional shares of
Common Stock shall be issued pursuant to this Award, and any
fractional share resulting from any calculation made in accordance
with the terms of this Agreement shall be rounded down to the next
whole share.
(d) The Corporation shall collect
the Withholding Taxes with respect to each distribution of phantom
dividend equivalents by withholding a por
