Common use of Effect of Non-Assumption Clause in Contracts

Effect of Non-Assumption. Except as provided by Section 3(b) below, notwithstanding any provision to the contrary contained in any plan or agreement evidencing a share-based compensation award with respect to Company common stock held by Employee (an “Equity Award”), in the event of a Change in Control in which the surviving, continuing, successor, or purchasing corporation or other business entity or parent thereof, as the case may be (the “Acquiror”), does not assume or continue the Company’s rights and obligations under a then-outstanding Equity Award or substitute for such Equity Award a substantially equivalent share-based compensation award with respect to the Acquiror’s capital stock, then the vesting, exercisability and settlement (as applicable) of such Equity Award shall be accelerated in full effective immediately prior to, but conditioned upon, the consummation of the Change in Control. For purposes of this Section, an Equity Award shall be deemed assumed if, following the Change in Control, the Equity Award confers the right of Employee to receive, subject to the terms and conditions of the applicable Company equity incentive plan and award agreement evidencing such Equity Award, for each share of Company common stock subject to the Equity Award immediately prior to the Change in Control, the consideration (whether shares, cash, other securities or property or a combination thereof) to which a holder of a share of Company common stock on the effective date of the Change in Control was entitled (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding shares of Company common stock); provided, however, that if such consideration is not solely common stock of the Acquiror, the Compensation Committee of the Board may, with the consent of the Acquiror, provide for the consideration to be received upon the exercise or settlement of the Equity Award, for each share subject to the Equity Award, to consist solely of common stock of the Acquiror equal in fair market value to the per share consideration received by holders of Company common stock pursuant to the Change in Control.

Effect of Non-Assumption. Except as provided by Section 3(b) below, notwithstanding any provision to the contrary contained in any plan or agreement evidencing a share-based compensation award with respect to Company the common stock of SciClone Pharmaceuticals, Inc. held by Employee (an “Equity Award”), in the event of a Change in Control in which the surviving, continuing, successor, or purchasing corporation or other business entity or parent thereof, as the case may be (the “Acquiror”), does not assume or continue the CompanySciClone Pharmaceuticals, Inc.’s rights and obligations under a then-outstanding Equity Award or substitute for such Equity Award a substantially equivalent share-based compensation award with respect to the Acquiror’s capital stock, then the vesting, exercisability and settlement (as applicable) of such Equity Award shall be accelerated in full effective immediately prior to, but conditioned upon, the consummation of the Change in Control. For purposes of this Section, an Equity Award shall be deemed assumed if, following the Change in Control, the Equity Award confers the right of Employee to receive, subject to the terms and conditions of the applicable Company equity incentive plan and award agreement of SciClone Pharmaceuticals, Inc. evidencing such Equity Award, for each share of Company common stock of SciClone Pharmaceuticals, Inc. subject to the Equity Award immediately prior to the Change in Control, the consideration (whether shares, cash, other securities or property or a combination thereof) to which a holder of a share of Company common stock of SciClone Pharmaceuticals, Inc. on the effective date of the Change in Control was entitled (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding shares of Company common stock); provided, however, that if such consideration is not solely common stock of the Acquiror, the Compensation Committee of the Board may, with the consent of the Acquiror, provide for the consideration to be received upon the exercise or settlement of the Equity Award, for each share subject to the Equity Award, to consist solely of common stock of the Acquiror equal in fair market value to the per share consideration received by holders of Company common stock of SciClone Pharmaceuticals, Inc. pursuant to the Change in Control.