Exhibit 10.65
PERFORMANCE SHARE AWARD
AGREEMENT
Performance Share Award #<<Performance
Shares>>«NUM»
«First_Name» «Middle_Name»
«Last_Name», Grantee:
GILEAD SCIENCES, INC.
(the “Company”),
pursuant to its 2004 Equity Incentive Plan, as amended (the
“Plan”), and this Performance Share Award Agreement
(the “Agreement”), has this day granted to you, the
grantee named above (“Grantee”), an award of
performance shares (“Performance Share Award”), subject
to the terms and conditions set forth in this Agreement and as
otherwise provided in the Plan. Any terms not defined herein shall
have the meaning set forth in the Plan.
The Performance Share Award
represents the Company’s unfunded and unsecured promise to
issue shares of Common Stock at a future date, subject to the terms
of this Agreement and the Plan. You have no rights under the
Performance Share Award other than the rights of a general
unsecured creditor of the Company.
The details of your Performance
Share Award are as follows:
1. The allotted number of shares of Common Stock
subject to this Performance Share Award is «Performance
Shares_Granted» (the “Allotted Performance
Shares”). Allotted Performance Shares are used solely to
calculate the actual number of Performance Shares that may be
issued to you under this Agreement (“Actual Performance
Shares”). Actual Performance Shares will be calculated at the
end of each performance period to the extent the performance goals
set forth in Appendix A to this Agreement are determined to have
been met. Actual Performance Shares may be adjusted pursuant to
Section 10 of the Plan (Adjustments Upon Changes In
Capitalization) as a result of stock splits, recapitalizations or
similar changes to the Company’s capital structure. You will
not be entitled to receive more than a maximum of 200% of
the Allotted Performance Shares noted above.
Actual Performance Shares are
calculated by multiplying the Allotted Performance Shares by a
performance percentage ranging from 0% to 200%. Such performance
percentage is calculated in accordance with the methodology set
forth in Appendix A and measures the performance of the Company
over the particular performance period described in Appendix A.
Performance of the Company is measured relative to external peers
using the AMEX Biotech-Pharmaceutical Index (AMEX:^BPI).
The Company will issue the
Performance Shares to you as soon as practicable after the
Performance Shares vest in accordance with paragraph 2
below.
2. Subject to paragraphs 9 and 10 below,
Performance Shares will vest when a Committee (or subcommittee) of
the Company’s Board of Directors, which is comprised solely
of two or more Directors eligible to serve on a committee making
Awards qualifying as Performance-Based Compensation, has determined
that the performance goals set forth in Appendix A have been
satisfied for a particular performance period. Performance Shares
shall vest, if at all, as follows:
(i) On the date on which the satisfaction of the
performance goals for the 2007 fiscal year (FY) performance period
has been certified, which shall be no later than Monday,
March 17, 2008 (the “First Vesting Date”),
twenty-five percent (25%) of the Performance Shares will
vest.
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(ii) On the date on which the satisfaction of the
performance goals for the 2008 FY performance period has been
certified, which shall be no later than Monday, March 16, 2009
(the “Second Vesting Date”), another twenty-five
percent (25%) of the Performance Shares will vest.
(iii) On the date on which the satisfaction of the
performance goals for the 2009 FY performance period has been
certified, which shall be no later than Monday, March 15, 2010
(the “Third Vesting Date”), the remaining fifty percent
(50%) of the Performance Shares will vest.
3. Consideration of not less than the par value of
the Common Stock, or $0.001 per share, has been paid by you to the
Company for the Performance Share Award in the form of services
rendered.
4. In the event a fractional portion of a
Performance Share vests, such fractional Performance Share will be
rounded down to the nearest whole number.
5. By accepting the Performance Share Award, you
agree not to sell any of the shares of Common Stock received under
this Award at a time when Applicable Laws or Company policies
prohibit a sale.
6. Until the shares of Common Stock subject to this
Performance Share Award are issued to you, as evidenced by a stock
certificate, appropriate entry on the books of the Company or of a
duly authorized transfer agent of the Company, or other appropriate
means, you shall have no right to vote or receive any rights and
privileges of a stockholder of the Company with respect to such
shares, notwithstanding the vesting of the Performance
Shares.
7. Provided you are a U.S. tax resident and subject
to the satisfaction of any tax withholding obligations described in
paragraph 11 below, you may elect to defer the receipt of any
shares of Common Stock issuable pursuant to this Performance Share
Award by submitting to the Company a deferral election in the form
provided to you by the Company. In the event you intend to defer
the receipt of any shares of Common Stock, you must submit to the
Company a completed deferral election form (i) by
June 30, 2007 with respect to Performance Shares which may
vest on the First Vesting Date, (ii) by June 30, 2008
with respect to Performance Shares which may vest on the Second
Vesting Date, and (iii) by June 30, 2009 with respect to
Performance Shares which may vest on the Third Vesting Date. By
submitting such deferral election, you represent that you
understand the effect of any such deferral under relevant federal,
state and local tax and social security laws, including, but not
limited to, the fact that social security contributions may be due
upon the vesting of the Performance Share Award notwithstanding
your deferral election.
8. This Performance Share Award and any interest
therein may not be transferred, except by will or by the laws of
descent and distribution. Any attempt to transfer any portion of
this Performance Share Award shall be null and void and without
effect.
9. Except as otherwise specified in paragraph 10
below, in the event of termination of your Continuous Active
Service, any unvested Performance Shares shall be forfeited and any
rights with respect to such Performance Shares will terminate as of
the date of termination of your Continuous Active
Service.
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10. Notwithstanding the provisions of paragraph 9
above, in the event of termination of Continuous Active Service due
to your death or your permanent and total disability (as determined
by the Company in its sole discretion), then the following shall
apply:
(i) If such termination of your Continuous Active
Service occurs prior to the First Vesting Date, you or your legal
representatives or heirs, as the case may be, are eligible to
receive a pro-rata portion of the Performance Shares that may vest
on this date. The Administrator will determine the pro-rata portion
of the Performance Shares under the following formula:
(A) [Number of Performance Shares that would have vested on
the First Vesting Date (if any)] multiplied by
(B) [Number of calendar months worked by you during FY 2007]
Divided by 12. You shall be deemed to have worked a calendar
month if you have worked any portion of that month. The remaining
Performance Shares that may have vested in 2009 and 2010 shall be
forfeited and any rights with respect to such Performance Shares
will terminate.
(ii) If such termination of your Continuous Active
Service occurs between the First Vesting Date and the Second
Vesting Date, any Performance Shares subject to the FY 2007
performance period will have already vested. In addition, you or
your legal representatives or heirs, as the case may be, are
eligible to receive a pro-rata portion of the Performance Shares
that may vest on the Second Vesting Date. The Committee will
determine the pro-rata portion of the Performance Shares under the
following formula: (A) [Number of Performance Shares that
would have vested on the Second Vesting Date (if any) multiplied
by (B) [Number of calendar months worked by you during FY
2007 and FY 2008] Divided by 24. You shall be deemed to have
worked a calendar month if you have worked any portion of that
month. The remaining Performance Shares that may have vested in
2010 shall be forfeited and any rights with respect to such
Performance Shares will terminate.
(iii) If such termination of your Continuous Active
Service occurs between the Second Vesting Date and the Third
Vesting Date, any Performance Shares subject to the FY 2007 and FY
2008 performance periods will have already vested. In addition, you
or your legal representatives or heirs, as the case may be, are
eligible to receive a pro-rata portion of the Performance Shares
that may vest on the Third Vesting Date. The Committee will
determine the pro-rata portion of the Performance Shares under the
following formula: (A) [Number of Performance Shares that
would have vested on the Third Vesting Date (if any)] multiplied
by (B) [Number of calendar months worked by you during FY
2007, FY 2008 and FY 2009] Divided by 36. You shall be
deemed to have worked a calendar month if you have worked any
portion of that month.
If you are entitled to receive a
pro-rata portion of the Performance Shares pursuant to this
paragraph, the shares of Common Stock subject to such Performance
Shares will be issued on the original vesting date in accordance
with paragraph 6 above, and not on the date of termination of your
Continuous Active Service.
11. Regardless of any action the Company or, if
different, your actual employer (the “Employer”) takes
with respect to any or all income tax (in
