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Exhibit
10.1
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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_____________________________________ |
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| Award
Date : |
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______________________, 200___ |
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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 number of 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 at
threshold level or above, 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 the extent to which that
Performance Objective has in fact been attained. On the basis of
that determination, the Administrator shall designate and certify
the portion (from 0 to 100%) of the Pro-Rated Shares allotted to
that Performance Objective in which Participant shall then 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.
Should the Administrator determine that
the minimum threshold level for 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 foregoing Vesting Schedule or pursuant to the
special vesting provisions of Paragraph 3 or 5 of this Agreement
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 that Pro-Rated Share allotment vests or (ii) the fifteenth
day of the third calendar month following such vesting date (the
“Issuance Date”). 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. |
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.
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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 Objectives, then the
Award shall be immediately cancelled with respect to the Pro-Rated
Shares allocated to those Performance Objectives, 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, 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.
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.
(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
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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 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. 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 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.
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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 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 so withheld.
ALTERNATIVE FOR SECTION 16
OFFICERS
(d) Unless Participant
(i) otherwise makes satisfactory arrangements with the
Corporation’s Human Resources Department, not later than
forty-five (45) days prior to the applicable vesting date of
the shares which become issuable hereunder, to pay the applicable
Withholding Taxes through the delivery of a check payable to the
Corporation in the amount of such Withholding Taxes and
(ii) in fact delivers such check to the Corporation not later
than that vesting date, the Corporation shall collect the
applicable Withholding Taxes through the f
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