Exhibit 10.26
INDIVIDUAL GOALS
GILEAD SCIENCES,
INC.
RESTRICTED STOCK UNIT ISSUANCE
AGREEMENT
RECITALS
A. The Board has adopted the Plan
for the purpose of providing incentives to attract, retain and
motivate eligible Employees, Directors and Consultants who provide
services to the Corporation (or any Related Entity).
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
, the Corporation hereby awards
Restricted Stock Units to Participant upon the following terms and
conditions:
1. Grant of Restricted Stock
Units . The Corporation hereby awards to Participant, as of
the Award Date, Restricted Stock Units under the Plan. Each
Restricted Stock Unit represents the right to receive one share of
Common Stock on the vesting date of that unit. The number of shares
of Common Stock subject to the awarded Restricted Stock Units, the
applicable vesting schedule for those shares, the dates on which
those vested shares shall become issuable to Participant and the
remaining terms and conditions governing the award (the
“Award”) shall be as set forth in this
Agreement.
AWARD SUMMARY
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Participant :
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Award
Date :
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, 20
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Number of Shares Subject to Award
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shares of Common Stock (the
“Shares”)
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Vesting Schedule
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The vesting of
the Shares shall be tied to the attainment of the Performance
Objectives set forth in attached Schedule I and the
Participant’s Continuous Service through the Completion Date
of each Performance Objective. The Performance Objectives shall be
equally weighted in that the number of Shares allocated to each
Performance Objective shall be determined by dividing the total
number of such Shares by the
(
) Performance Objectives, and the number of Shares so allocated to
each Performance Objective shall be designated the “Pro-Rated
Shares.”
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Participant shall, within fifteen
(15) days after the attainment of each Performance Objective,
notify the Administrator of the Completion Date of that Performance
Objective. Within forty-five (45) days after receipt of such
notice, the Administrator shall, in its sole discretion, determine
and certify whether that Performance Objective has in fact been
attained. Upon the Administrator’s certification that the
Performance Objective has been attained, the Pro-Rated Shares
allotted to that Performance Objective shall vest; provided,
however that Participant shall not vest in any portion of
those Pro-Rated Shares unless Participant remained in Continuous
Service through the Completion Date for that Performance Objective
(the “Normal Vesting Schedule”).
Should the Administrator determine
that one or more Performance Objectives has not been attained prior
to the latest Completion Dates for those Performance Objectives,
then Participant shall not vest in any of the Pro-Rated Shares
allotted to those Performance Objectives, and this Award shall be
cancelled with respect to the Restricted Stock Units covering those
Pro-Rated Shares.
One or more Shares may also vest
accordance with the special vesting provisions of Paragraph 3 or 5
of this Agreement, whether or not the Performance Objectives
allotted to those Shares are attained.
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Issuance Schedule
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Each allotment
of Pro-Rated Shares in which Participant vests in accordance with
the Normal Vesting Schedule shall be issued on the date that
Pro-Rated Share allotment so vests or as soon thereafter as
administratively practicable, but in no event later than the
later of (i) the close of the calendar year in
which the Completion Date for that Pro-Rated Share allotment occurs
or (ii) the fifteenth day of the third calendar month
following such Completion Date (the “Issuance Date”).
Each allotment of Pro-Rated Shares that vests pursuant to the
special vesting provisions of Paragraph 3 or 5 of this Agreement
shall be issued in accordance with the applicable provisions of
such Paragraph. The Corporation shall collect the applicable
Withholding Taxes with respect to the issued Shares pursuant to the
procedures set forth in Paragraph 7 of this Agreement.
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2. Limited
Transferability . Prior to the actual issuance of the
Shares which vest hereunder, Participant may not transfer any
interest in the restricted stock units subject to the Award or the
underlying Shares or pledge or otherwise hedge the sale of those
units or 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 those Shares. However, any Shares
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 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 filing the
appropriate form with the Plan Administrator or its
designee.
3. Continuous Service
Requirement .
(a) Should Participant’s
Continuous Service terminate for any reason other than death or
Permanent Disability prior to the latest Completion Dates for one
or more Performance Objective that have not otherwise been
attained, then the Award shall be immediately cancelled with
respect to the Pro-Rated Shares allocated to those Performance
Objective, and the number of Restricted Stock Units will be reduced
accordingly. Participant shall thereupon cease to have any right or
entitlement to receive any Shares under those cancelled
units.
(b) Should Participant’s
Continuous Service terminate by reason of death or Permanent
Disability prior to the latest Completion Dates for one or more
Performance Objectives that have not otherwise been attained, then
Participant shall vest in a portion of the Pro-Rated Shares
allotted to each of those particular Performance Objectives. The
portion of Pro-Rated Shares in which Participant shall vest with
respect to each such Performance Objective shall be determined by
multiplying the number of those Pro-Rated Shares by a fraction, the
numerator of which is the number of months (rounded to the next
whole month) in which Participant remained in Continuous Service
following the Award Date, and the denominator of which is the
number of months (rounded to the closest whole number) in the
period beginning with the Award Date and ending with the latest
Completion Date for that particular Performance Objective. The
Pro-Rated Shares in which Participant so vests shall be issued
within thirty (30) days after the date on which the
Participant’s Continuous Service terminates, but in no event
later than the later of (i) the close of the
calendar year in which such termination of Continuous Service
occurs or (ii) the fifteenth day of the third calendar month
following such termination date (the “Issuance
Date”).
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 subject to the Award
until Participant becomes the record holder of those Shares
following their actual issuance after the Corporation’s
collection of the applicable Withholding Taxes.
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(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 Shares remain subject to
this Award (i.e., those Shares 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 which would have been paid on the
Shares at the time subject to this Award had they been issued and
outstanding and entitled to that dividend or distribution. As one
or more Shares 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 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. Should Participant cease Continuous Service
prior to vesting in one or more Shares, then the phantom dividend
equivalents credited to those Shares shall be cancelled, and
Participant shall thereupon cease to have any further right or
entitlement to those cancelled amounts.
5. Change of Control
.
(a) To the extent (i) a Change
in Control is consummated prior to the latest Completion Dates for
one or more Performance Objectives that have not otherwise been
attained and (ii) Participant remains in Continuous Service
through the effective date of that Change in Control, then the
Pro-Rata Shares allotted to each of those particular Performance
Objectives shall immediately vest at the time of such Change in
Control and shall be issued immediately 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, or will otherwise 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 distributed at the same
time as such stockholder payments, but in no event shall such
distribution to Participant be completed later than the
later of (i) the end of the calendar year in
which such Change in Control is effected or (ii) the fifteenth
(15th) day of the third (3rd) calendar month following
the effective date of that Change in Control (the “Issuance
Date”). Each issuance or distribution made under this
Paragraph 5 shall be subject to the Corporation’s collection
of the applicable Withholding Taxes.
(b) 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 or
other change affecting the outstanding Common Stock as a class
without the Corporation’s receipt of consideration, or should
the value of the
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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 and
proportional 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 and thereby prevent a
dilution or enlargement of benefits hereunder. In making such
equitable and proportional adjustments, the Administrator shall
take into account any amounts to be 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 a Change in Control,
the provisions of Paragraph 5 shall be controlling.
7. Issuance of Shares of
Common Stock .
(a) 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 Normal
Vesting Schedule set forth in Paragraph 1 or the special vesting
provisions of Paragraph 3 or 5 and shall concurrently distribute to
the Participant any phantom dividend equivalents with respect to
those Shares.
(b) Except as otherwise provided in
Paragraph 3(b) or 5(a), no shares of Common Stock shall be issued
prior to the Completion Date of the Performance Objective to which
those shares are allotted.
(c) The Corporation shall collect
the Withholding Taxes with respect to each distribution of phantom
dividend equivalents by withholding a portion of that distribution
equal to the amount of the applicable Withholding Taxes, with the
cash portion of the distribution to be the first portion