<PAGE>
As filed with the Securities and Exchange Commission on July 12, 1996
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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GILEAD SCIENCES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 94-3047598
(State of Incorporation) (I.R.S. Employer Identification No.)
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353 LAKESIDE DRIVE
FOSTER CITY, CA 94404
(415) 574-3000
(Address and telephone number of principal executive offices)
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1995 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
(Full title of the plan)
Mark L. Perry, Esq.
Vice President, Chief Financial Officer and General Counsel
Gilead Sciences, Inc.
353 Lakeside Drive
Foster City, CA 94404
(415) 574-3000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
------------------------------
Copy to:
Julia L. Davidson, Esq.
Cooley Godward Castro Huddleson & Tatum
Five Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306-2155
(415) 843-5000
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Total Number of Pages:
Exhibit Index at Page:
<PAGE>
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED SHARE (1) PRICE (1) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Stock Option and
Common Stock (par
value $.001) 350,000 $23.25 $8,137,500 $2,807
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</TABLE>
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(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c) and (h)(1). The price per
share and aggregate offering price are based upon the average of the
high and low prices of Registrant's Common Stock on July 11, 1996
as reported on the Nasdaq Stock Market.
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Approximate date of commencement of proposed sale to the public: As
soon as practicable after this Registration Statement becomes effective.
<PAGE>
PART II
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Gilead Sciences, Inc. (the
"Registrant") with the Securities and Exchange Commission (the "Commission") are
incorporated by reference into this Registration Statement:
a. The Registrant's annual report on Form 10-K for the fiscal year
ended December 31, 1995 filed pursuant to Sections 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
b. The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1996.
c. The Registrant's Proxy Statement for the Annual Meeting of
Stockholders held on May 14, 1996.
d. The description of the Registrant's Common Stock which is
contained in the Final Prospectus filed under the Securities Act of 1933, as
amended, by the Registrant with the Commission on December 22, 1992.
All reports and other documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
DESCRIPTION OF SECURITIES
Not applicable.
INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
<PAGE>
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law, the
Registrant has broad power to indemnify its directors and officers against
liabilities they may incur in such capacities, including liabilities under the
Securities Act of 1933, as amended (the "Act"). The Registrant's Bylaws also
provide that the Registrant will indemnify its directors and executive officers,
and may indemnify its other officers, directors, employees and other agents to
the fullest extent not prohibited by Delaware law.
The Registrant's Restated Certificate of Incorporation ("Restated
Certificate") provides that the liability of its directors for monetary damages
shall be eliminated to the fullest extent permissible under Delaware law.
Pursuant to Delaware law, this includes elimination of liability for monetary
damages for breach of the directors' fiduciary duty of care to the Registrant
and its stockholders. These provisions do not eliminate the directors' duty of
care and, in appropriate circumstances, equitable remedies such an injunctive or
other forms of non-monetary relief will remain available under Delaware law. In
addition, each director will continue to be subject to liability for breach of
the director's duty of loyalty to the Registrant, for acts or omissions not in
good faith or involving intentional misconduct, for knowing violations of law,
for any transaction from which the director derived an improper personal
benefit, and for payment of dividends or approval of stock repurchases or
redemptions that are unlawful under Delaware law. The provision also does not
affect a director's responsibilities under any other laws, such as the federal
securities laws or state or federal environmental laws.
The Registrant has been authorized by the Board to enter into agreements
with its directors and officers that require the Registrant to indemnify such
persons to the fullest extent authorized or permitted by the provisions of the
Restated Certificate and Delaware law against expenses, judgments, fines,
settlements and other amounts actually and reasonably incurred (including
expenses of a derivative action) in connection with any proceeding, whether
actual or threatened, to which any such person may be made a party by reason of
the fact that such person is or was a director, officer, employee or other agent
of the Registrant or any of its affiliated enterprises. Delaware law permits
such indemnification provided such person acted in good faith and in a manner
such person reasonably believed to be in or not opposed to the best interests of
the Registrant and, with respect to any criminal proceeding, had no reasonable
cause to believe his or her conduct was unlawful. The indemnification
agreements also set forth certain procedures that will apply in the event of a
claim for indemnification thereunder.
<PAGE>
UNDERTAKINGS
a. The undersigned registrant hereby undertakes:
i. To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(1) To include any prospectus required by section
10(a)(3) of the Securities Act;
(2) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) (Section 230.424(b)
of this chapter) if, in the aggregate, the changes in volume and price represent
no more than a 20% change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective registration
statement.
(3) To include any material information with respect
to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
PROVIDED, HOWEVER, that paragraphs (a)(i) and (a)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the issuer pursuant to section 13 or
section 15(d) of the Exchange Act that are incorporated by reference in the
registration statement.
ii. That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
iii. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
b. The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
c. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
<PAGE>
EXHIBITS
EXHIBIT
NUMBER
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5.1 Opinion of Cooley Godward Castro Huddleson & Tatum
23.1 Consent of Ernst & Young LLP
23.2 Consent of Cooley Godward Castro Huddleson & Tatum is contained
in Exhibit 5.1 to this Registration Statement
24.1 Power of Attorney is contained on the signature page
99.1* 1995 Non-Employee Directors' Stock Option Plan and related form
of stock option grant
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* Incorporated by reference to Exhibit 10.33 of the Registrant's Registration
Statement on Form S-3 filed January 23, 1996 (File No. 333-868).
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Foster City, County of San Mateo, State of
California, on July 11, 1996.
GILEAD SCIENCES, INC.
By: /s/ John C. Martin
------------------------------------------
John C. Martin
President and Chief Executive Officer
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints John C. Martin and Mark L. Perry, and
each of them, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or their
or his substitutes or substitute, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ Michael L. Riordan
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Michael L. Riordan Chairman of the Board July 11, 1996
/s/ John C. Martin
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John C. Martin President, Chief Executive July 11, 1996
Officer and Director
(Principal Executive Officer)
/s/ Mark L. Perry
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Mark L. Perry Vice President, Chief July 11, 1996
Financial Officer and General
Counsel (Principal Financial
and Accounting Officer)
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Etienne F. Davignon Director , 1996
/s/ James M. Denny
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James M. Denny Director July 11, 1996
/s/ Gordon E. Moore
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Gordon E. Moore Director July 11, 1996
/s/ Donald H. Rumsfeld
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Donald H. Rumsfeld Director July 11, 1996
/s/ George P. Shultz
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George P. Shultz Director July 11, 1996
<PAGE>
EXHIBIT INDEX
EXHIBIT SEQUENTIAL PAGE
NUMBER DESCRIPTION NUMBER
5.1 Opinion of Cooley Godward Castro Huddleson
& Tatum
23.1 Consent of Ernst & Young LLP
23.2 Consent of Cooley Godward Castro Huddleson
& Tatum is contained in Exhibit 5.1 to this
Registration Statement
24.1 Power of Attorney is contained on the
signature pages
99.1* 1995 Non-Employee Directors' Stock Option Plan
and related form of stock option grant
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* Incorporated by reference to Exhibit 10.33 of the Registrant's Registration
Statement of Form S-3 filed January 23, 1996 (File No. 333-868).
<PAGE>
[LETTERHEAD]
July 11, 1996
Gilead Sciences, Inc.
353 Lakeside Drive
Foster City, CA 94404
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Gilead Sciences, Inc. (the "Company") of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission covering the offering of up to 350,000 shares of the
Company's common stock, $.001 par value (the "Common Stock"), pursuant to the
1991 Non-Employee Directors' Stock Option Plan (the "Plan").
In connection with this opinion, we have examined the Registration Statement and
related prospectus, your Certificate of Incorporation and Bylaws and such other
documents, records, certificates, memoranda and other instruments as we deem
necessary as a basis for this opinion. We have assumed the genuineness and
authenticity of all documents submitted to us as originals, the conformity to
originals of all documents submitted to us as copies thereof, and the due
execution and delivery of all documents where due execution and delivery are a
prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the shares of Common Stock, when sold and issued in accordance with the
Plan, the Registration Statement and the related prospectus, will be validly
issued, fully paid, and nonassessable (except as to shares issued pursuant to
certain deferred payment arrangements, which will be fully paid and
nonassessable when such deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
COOLEY GODWARD CASTRO
HUDDLESON & TATUM
By: /s/ Deborah A. Marshall
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Deborah A. Marshall
<PAGE>
Exhibit 23.1
Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1995 Non-Employee Directors' Stock Option Plan of Gilead
Sciences, Inc. of our report dated January 18, 1996, with respect to the
consolidated financial statements of Gilead Sciences, Inc. incorporated by
reference in its Annual Report (Form 10-K) for the year ended December 31, 1995,
filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Palo Alto, California
July 11, 1996
