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Exhibit
10.65
NON-EMPLOYEE BOARD
MEMBER—ANNUAL GRANT
GILEAD SCIENCES,
INC.
STOCK OPTION
AGREEMENT
RECITALS
A. Optionee is to render
valuable services to the Corporation as a non-employee Board
member, and this Agreement is executed pursuant to, and is intended
to carry out the purposes of, the Plan in connection with the
Corporation’s grant of an option to Optionee in his or her
capacity as a non-employee Board member.
B. All capitalized terms in
this Agreement shall have the meaning assigned to them in the
attached Appendix.
NOW, THEREFORE, the
Corporation hereby grants an option to Optionee upon the following
terms and conditions:
1. Grant of Option
. The Corporation hereby grants to Optionee, as of the Grant
Date, an option to purchase the Option Shares under the Plan. The
number of Option Shares purchasable under the option, the
applicable vesting schedule for the option, the exercise price per
share and the remaining terms and conditions governing the option
shall be as set forth in this Agreement.
AWARD
SUMMARY
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| Optionee: |
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_______________________________________ |
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| Grant
Date: |
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______________________, 200___ |
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| Exercise
Price: |
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$_____
per share |
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| Number of
Option Shares: |
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______________ shares of Common Stock |
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| Expiration Date: |
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______________________, 20____* |
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| Type of
Option: |
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Non-Statutory Stock Option |
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| Exercise
Schedule: |
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The
option is fully-vested and immediately exercisable for any or all
of the Option Shares. |
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The option will in no event remain exercisable beyond the close
of business on the last business day immediately prior to the
Expiration Date. |
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2. Option Term
. The term of this option shall commence on the Grant Date and
continue to be in effect until the close of business on the last
business day prior to the Expiration Date, unless sooner terminated
in accordance with Paragraph 5 or 6 below.
3. Limited
Transferability . The following provisions shall govern the
transferability of this option:
(a) This option may be
assigned in whole or in part during Optionee’s lifetime to
one or more members of Optionee’s Immediate Family or to a
trust established for the Optionee and/or one or more Immediate
Family members, provided such assignment constitutes a gratuitous
transfer by the Optionee for which no consideration is directly or
indirectly received. The assigned portion may only be exercised by
the person who acquires a proprietary interest in the option
pursuant to the assignment. The terms applicable to the assigned
portion shall be the same as those in effect for the option
immediately prior to such assignment and shall be set forth in such
documents to be executed by the Optionee and the assignee as the
Corporation may deem appropriate.
(b) Optionee may also
designate one or more persons as the beneficiary or beneficiaries
of this option. Should Optionee die while holding this option, then
the option shall be, in accordance with such designation,
automatically transferred to such beneficiary or beneficiaries upon
the Optionee’s death. Such beneficiary or beneficiaries shall
take the transferred option subject to all the terms and conditions
of this Agreement, including (without limitation) the limited time
period during which this option may, pursuant to Paragraph 5 below,
be exercised following Optionee’s death.
4. Dates of
Exercise . This option is immediately exercisable for all
of the Option Shares as fully-vested shares of Common Stock and may
be exercised for any or all of those Option Shares at any time
prior to (i) the close of business on the last business day
prior to the Expiration Date or (ii) the sooner termination of
the option term under Paragraph 5 or 6 below.
5. Cessation of
Service . The option term specified in Paragraph 2 above
shall terminate (and this option shall cease to be outstanding)
prior to the Expiration Date should any of the following provisions
become applicable:
(a) Except as otherwise
expressly provided in subparagraphs (b) through (e) of
this Paragraph 5, should Optionee cease to remain in Continuous
Service for any reason while this option is outstanding, then
Optionee shall have until the close of business on the last
business day prior to the expiration of the three- (3) year
period measured from the date of such cessation of Continuous
Service during which to exercise this option for any or all of the
Option Shares at the time subject to this option, but in no event
shall this option be exercisable at any time after the close of
business on the last business day prior to the Expiration
Date.
(b) For purposes of this
Paragraph 5, Optionee shall be deemed to remain in Continuous
Service for so long as Optionee continues to serve the Corporation
as a Director Emeritus immediately following his or her cessation
of service as a Board member without an intervening break in
Continuous Service.
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(c) Should Optionee’s
Continuous Service terminate by reason of his or her death while
this option is outstanding, then this option may be exercised for
any or all of the Option Shares subject to this option at the time
of such termination of Continuous Service by (i) the personal
representative of Optionee’s estate, (ii) the person or
persons to whom the option is transferred pursuant to
Optionee’s will or the laws of inheritance following
Optionee’s death or (iii) the person or persons to whom
this option is transferred during Optionee’s lifetime
pursuant to a permitted transfer under Paragraph 3(a) above, as the
case may be. However, if Optionee dies while holding this option
and has an effective beneficiary designation in effect for this
option at the time of his or her death, then the designated
beneficiary or beneficiaries shall have the exclusive right to
exercise this option following Optionee’s death. Any such
right to exercise this option shall lapse, and this option shall
cease to be outstanding, upon the close of business on the last
business day prior to the earlier of (i) the
expiration of the three- (3) year period measured from the
date of Optionee’s death or (ii) the Expiration Date.
Upon the expiration of such limited exercise period, this option
shall terminate and cease to be outstanding for any exercisable
Option Shares for which the option has not otherwise been
exercised.
(d) The applicable period of
post-service exercisability in effect pursuant to the foregoing
provisions of this Paragraph 5 shall automatically be extended by
an additional period of time equal in duration to any interval
within such post-service exercise period during which the exercise
of this option or the immediate sale of the Option Shares acquired
under this option cannot be effected in compliance with applicable
federal and state securities laws, but in no event shall such an
extension result in the continuation of this option beyond the
close of business on the last business day prior to the Expiration
Date.
(e) Should Optionee’s
Continuous Service be terminated for Cause, or should Optionee
engage in any other conduct, while in such service or following
cessation of Continuous Service, that is materially detrimental to
the business or affairs of the Corporation (or any Related Entity),
as determined in the sole discretion of the Administrator, then
this option shall terminate immediately and cease to be
outstanding.
6. Change in
Control .
(a) Immediately following the
consummation of a Change in Control transaction, this option shall
terminate and cease to be outstanding, except to the extent assumed
by the successor corporation (or parent thereof) or otherwise
continued in effect pursuant to the terms of the Change in Control
transaction.
(b) If this option is assumed
in connection with a Change in Control or otherwise continued in
effect, then this option shall be appropriately adjusted,
immediately after such Change in Control, to apply to the number
and class of securities into which the shares of Common Stock
subject to this option would have been converted in consummation of
such Change in Control had those shares actually been outstanding
at the time. Appropriate adjustments shall also be made to the
Exercise Price, provided the aggregate Exercise Price shall remain
the same. To the extent the actual holders of the
Corporation’s outstanding Common Stock receive cash
consideration for their Common Stock in consummation of the Change
in Control, the successor corporation may, in connection with the
assumption or continuation of this option but subject to the
Administrator’s approval, substitute one or more shares of
its own common stock with a fair market value equivalent to the
cash consideration paid per share of Common Stock in such Change in
Control, provided such common stock is readily tradable on an
established U.S. securities exchange or market.
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(c) 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.
7. Adjustment in Option
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 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
(i) the total number and/or class of securities subject to
this option and (ii) the Exercise Price. The adjustments shall
be made in such manner as the Administrator deems appropriate in
order to reflect such change and thereby prevent the dilution or
enlargement of benefits hereunder, and those adjustments shall be
final, binding and conclusive upon Optionee and any other person or
persons having an interest in the option. In the event of any
Change in Control transaction, the adjustment provisions of
Paragraph 6(c) above shall be controlling.
8. Stockholder
Rights . The holder of this option shall not have any
stockholder rights with respect to the Option Shares until such
person shall have exercised the option, paid the Exercise Price and
become a holder of record of the purchased shares.
9. Manner of Exercising
Option .
(a) In order to exercise this
option with respect to all or any portion of the Option Shares at
the time subject to this option, Optionee (or any other person or
persons exercising the option) must take the following
actions:
(i) Execute and deliver to
the Corporation a Notice of Exercise as to the Option Shares for
which the option is exercised or comply with such other procedures
as the Corporation may establish for notifying the Corporation,
either directly or through an on-line internet transaction with a
brokerage firm authoriz
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