Exhibit 10.4



		

			Exhibit 10.4

		


		

			 

		




		
			SCICLONE PHARMACEUTICALS, INC.
		

		
			NOTICE OF GRANT OF RESTRICTED STOCK UNITS
		

		
			(Time-Based RSUs for US Participant)
		

		
			 
		

		
			The Participant has been granted an award of Restricted Stock Units (the “Award”) pursuant to the SciClone Pharmaceuticals, Inc. 2005 Equity Incentive Plan (the “Plan”), each of which represents the right to receive on the applicable Settlement Date one (1) share of Stock of SciClone Pharmaceuticals, Inc., as follows:
		

		
			 
		

			
					
						 

					
					
						 

					
					
						 

					
					
						 

				
	
					
						Participant:

					
					
						Friedhelm M. Blobel

					
					
						Employee ID:

					
					
						

				
	
					
						Date of Grant:

					
					
						April 3, 2015

					
					
						Award No.:

					
					
						

				
	
					
						Total Number of Units:

					
					
						150,000, subject to adjustment as provided by the Restricted Stock Units Agreement (the “Agreement”).

				
	
					
						Settlement Date:

					
					
						Except as otherwise provided by the Agreement, the Settlement Date for each Unit shall be the date on which such Unit becomes a Vested Unit in accordance with the vesting schedule set forth below, or, in the discretion of the Committee, such later date on which the sale of the Stock to be issued in settlement of such Unit would not violate the Company’s Insider Trading Policy, but in any event no later than the 15th day of the third month following the later of (i) the last day of the calendar year or (ii) the last day of the Company’s taxable year, in which such Unit became a Vested Unit.

				
	
					
						Initial Vesting Date:

					
					
						The first business day following December 31, 2015.

				
	
					
						Vested Units:

					
					
						Except as provided by the Agreement and provided that the Participant’s Service has not terminated prior to the applicable date, the number of Vested Units (disregarding any resulting fractional Unit) shall be determined as of any date by multiplying the Total Number of Units by the “Vested Percentage” determined as of such date, as follows:

				
	
					
						 

					
					
						 

					
					
						Vested Percentage

				
	
					
						 

					
					
						Prior to the Initial Vesting Date .....................................................................

					
					
						0%

				
	
					
						 

					
					
						On the Initial Vesting Date .............................................................................

					
					
						33-1/3%

				
	
					
						 

					
					
						Plus

					
					
						 

				
	
					
						 

					
					
						For each additional full year of the Participant’s Service from the Initial Vesting Date until the Vested Percentage equals 100% 

					
					
						

33-1/3%

				



		
			 
		

		
			By their signatures below or by electronic acceptance or authentication in a form authorized by the Company, the Company and the Participant agree that the Award is governed by this Grant Notice and by the provisions of the Plan and the Restricted Stock Units Agreement, both of which are made a part of this document.  The Participant acknowledges that copies of the Plan, Restricted Stock Units Agreement and the prospectus for the Plan are available on the Company’s internal web site and may be viewed and printed by the Participant for attachment to the Participant’s copy of this Grant Notice.  The Participant represents that the Participant has read and is familiar with the provisions of the Plan and Restricted Stock Units Agreement, and hereby accepts the Award subject to all of their terms and conditions.
		

		
			 
		

			
					
						 

					
					
						 

					
					
						 

				
	
					
						SCICLONE PHARMACEUTICALS, INC.

					
					
						PARTICIPANT

				
	
					
						 

					
					
						 

				
	
					
						By: 

					
					
						

				
	
					
						Wilson W. Cheung

					
					
						Signature

				
	
					
						CFO & Sr. VP Finance

					
					
						

				
	
					
						 

					
					
						Date

				
	
					
						Address:

					
					
						950 Tower Lane

					
					
						

				
	
					
						 

					
					
						Suite 900

					
					
						Address

				
	
					
						 

					
					
						Foster City CA 94404-2125

					
					
						

				



		
			 
		

		
			ATTACHMENTS:     2005 Equity Incentive Plan, as amended to the Date of Grant; Restricted Stock Units Agreement and Plan Prospectus
		

		

		

		 


		

			WEST\256993615.1
347684-901400

		




 

		 
		

		
			SCICLONE PHARMACEUTICALS, INC.
		

		
			RESTRICTED STOCK UNITS AGREEMENT
		

		
			(Time-Based RSUs for US Participant)
		

		
			 
		

		
			SciClone Pharmaceuticals, Inc. has granted to the Participant named in the Notice of Grant of Restricted Stock Units (the “Grant Notice”) to which this Restricted Stock Units Agreement (the “Agreement”) is attached an Award consisting of Restricted Stock Units (each, a “Unit”)  subject to the terms and conditions set forth in the Grant Notice and this Agreement.  The Award has been granted pursuant to and shall in all respects be subject to the terms and conditions of the SciClone Pharmaceuticals, Inc. 2005 Equity Incentive Plan (the “Plan”), as amended to the Date of Grant, the provisions of which are incorporated herein by reference.  By signing the Grant Notice, the Participant: (a) acknowledges receipt of and represents that the Participant has read and is familiar with the Grant Notice, this Agreement, the Plan and a prospectus for the Plan prepared in connection with the registration with the Securities and Exchange Commission of the shares issuable pursuant to the Award (the “Plan Prospectus”), (b) accepts the Award subject to all of the terms and conditions of the Grant Notice, this Agreement and the Plan and (c) agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee upon any questions arising under the Grant Notice, this Agreement or the Plan.
		

		
			1.Definitions and Construction.
		

		
			1.1Definitions.  Unless otherwise defined herein, capitalized terms shall have the meanings assigned to such terms in the Grant Notice or the Plan.
		

		
			(a)“Cause” means any of the following, in each case, as determined by the Committee after reasonable and good faith consultation with the Participant: (i) the Participant’s theft, dishonesty, misconduct or falsification of any records of any member of the Participating Company Group; (ii) the Participant’s misappropriation or improper disclosure of confidential or proprietary information of the Participating Company Group; (iii) any intentional action by the Participant which has a material detrimental effect on the reputation or business of the Participating Company Group; (iv) the Participant’s failure or inability to perform any reasonable assigned duties after written notice from the Participating Company Group of, and a reasonable opportunity to cure, such failure or inability; (v) any material breach by the Participant of any employment agreement between the Participant and any member of the Participating Company Group, which breach is not cured pursuant to the terms of such agreement; or (vi) the Participant’s conviction of any criminal act which impairs the Participant’s ability to perform his or her duties for the Participating Company Group.
		

		
			(b)“Good Reason” means the occurrence of any of the following without the Participant’s express written consent: (i) a material diminution in the Participant’s authority, duties or responsibilities, causing the Participant’s position to be of materially lesser rank or responsibility within the Company or an equivalent business unit of its parent, as measured against the Participant’s authority, duties or responsibilities at any time during the ninety (90) day period immediately prior to the Change in Control; (ii) the relocation of the principal place of the Participant’s Service, following the Change in Control, to a location that is more than fifty (50) miles from the Employee’s principal place of Service immediately prior to the date of the Change in Control; (iii) any failure by the Participating Company Group, following the Change in Control, to pay, or any material reduction by the Participating Company 
		

		 


		

			WEST\256993615.1
347684-9014002

		




 

		Group of, (1) the Participant’s base salary in effect immediately prior to the date of the Change in Control, or (2) the Participant’s bonus compensation, if any, in effect immediately prior to the date of the Change in Control (subject to applicable performance requirements with respect to the actual amount of bonus compensation earned by the Participant), unless base salary and/or bonus reductions comparable in amount and duration are concurrently made for a majority of the other employees of the Participating Company Group who have substantially similar titles and responsibilities as the Participant; and (iv) any failure by the Participating Company Group, following the Change in Control, to (1) continue to provide the Participant with the opportunity to participate, on terms no less favorable than those in effect for the benefit of any employee group which customarily includes a person holding the employment position or a comparable position with the Participating Company Group then held by the Participant, in any benefit or compensation plans and programs, including, but not limited to, the Participating Company Group’s life, disability, health, dental, medical, savings, profit sharing, stock purchase and retirement plans, if any, in which the Participant was participating immediately prior to the date of the Change in Control, or in substantially similar plans or programs, or (2) provide the Participant with all other fringe benefits (or substantially similar benefits), including, but not limited to, relocation benefits, provided to any employee group which customarily includes a person holding the employment position or a comparable position with the Participating Company Group then held by the Participant, which the Participant was receiving immediately prior to the date of the Change in Control.
		

		
			(c)“Involuntary Termination” means the occurrence of either (i) the termination by the Participating Company Group of the Participant’s Service for any reason other than Cause (and not as a result of the Participant’s death or disability), or (ii) the termination by the Participant of the Participant’s Service for Good Reason within a period of ninety (90) days following the initial occurrence of a condition constituting Good Reason, provided that the Participant gave written notice to the Company of the initial occurrence of such condition within thirty (30) days following such initial occurrence and the Participating Company Group failed to correct such condition within thirty (30) days following the date of such written notice.
		

		
			1.2Construction.  Captions and titles contained herein are for convenience only and shall not affect the meaning or interpretation of any provision of this Agreement.  Except when otherwise indicated by the context, the singular shall include the plural and the plural shall include the singular.  Use of the term “or” is not intended to be exclusive, unless the context clearly requires otherwise.
		

		
			2.Administration.
		

		
			All questions of interpretation concerning the Grant Notice, this Agreement, the Plan or any other form of agreement or other document employed by the Company in the administration of the Plan or the Award shall be determined by the Committee.  All such determinations by the Committee shall be final, binding and conclusive upon all persons having an interest in the Award, unless fraudulent or made in bad faith.  Any and all actions, decisions and determinations taken or made by the Committee in the exercise of its discretion pursuant to the Plan or the Award or other agreement thereunder (other than determining questions of interpretation pursuant to the preceding sentence) shall be final, binding and conclusive upon all persons having an interest in the Award.  Any Officer shall have the authority to act on behalf of the Company with respect to any matter, right, obligation, or election which is the responsibility of or which is allocated to the Company herein, provided the Officer has apparent authority with respect to such matter, right, obligation, or election.
		

		 


		

			WEST\256993615.1
347684-9014003

		




 

		
			3.The Award.
		

		
			3.1Grant of Units.  On the Date of Grant, the Participant shall acquire, subject to the provisions of this Agreement, the Total Number of Units set forth in the Grant Notice, subject to adjustment as provided in Section 9.  Each Unit represents a right to receive on a date determined in accordance with the Grant Notice and this Agreement one (1) share of Stock.
		

		
			3.2No Monetary Payment Required.  The Participant is not required to make any monetary payment (other than applicable tax withholding, if any) as a condition to receiving the Units or shares of Stock issued upon settlement of the Units, the consideration for which shall be past services actually rendered or future services to be rendered to a Participating Company or for its benefit.    Notwithstanding the foregoing, if required by applicable law, the Participant shall furnish consideration in the form of cash or past services rendered to a Participating Company or for its benefit having a value not less than the par value of the shares of Stock issued upon settlement of the Units.
		

		
			4.Vesting of Units.
		

		
			4.1Normal Vesting.    Except as provided by Sections 4.2, 4.3 and 4.4, Units acquired pursuant to this Agreement shall become Vested Units as provided in the Grant Notice.  For purposes of determining the number of Vested Units following an Ownership Change Event, credited Service shall include all Service with any corporation which is a Participating Company at the time the Service is rendered, whether or not such corporation is a Participating Company both before and after the Ownership Change Event.
		

		
			4.2Accelerated Vesting upon Non-Assumption in Connection with a Change in Control.  Subject to Section 4.5, in the event of a Change in Control in which the Acquiror (as defined below) does not assume or continue in full force and effect the Company’s rights and obligations with respect to all of the outstanding Units or substitute for all of the outstanding Units substantially equivalent rights with respect to the Acquiror’s stock, then the vesting of all of such Units which are not assumed, continued or substituted for shall be accelerated in full and such Units shall be deemed Vested Units immediately prior to, but conditioned upon, the consummation of the Change in Control, provided that the Participant’s Service has not terminated prior to the date of the Change in Control.
		

		
			4.3Accelerated Vesting upon Involuntary Termination following a Change in Control.    Subject to Section 4.5, in the event of the Participant’s Involuntary Termination upon or within twelve (12) months following a Change in Control (the “Change in Control Period”), and provided that the Participant executes a general release of known and unknown claims in a customary form reasonably acceptable to the Company and such release has become effective in accordance with its terms on or before the sixtieth (60th) day following such Involuntary Termination, all Units acquired pursuant to this Agreement and then outstanding shall be deemed Vested Units effective as of the date of such Involuntary Termination and shall be settled in accordance with Section 6.1,  treating as the Settlement Date for this purpose the later of (a) the sixtieth (60th) day following such Involuntary Termination or (b) the next trading day on which the sale of shares of Stock to be issued in settlement of such Units would not violate the Insider Trading Policy, but in any event no later than the 15th day of the third month following the later of (i) the last day of the calendar year or (ii) the last day of the Company’s taxable year, in which the date of the Involuntary Termination occurred.
		

		 


		

			WEST\256993615.1
347684-9014004

		




 

		
			4.4Accelerated Vesting upon Termination without Cause Not in Connection with a Change in Control.    In the event that the Participant’s Service is terminated by the Company without Cause (and not as a result of the Participant’s death or disability) at any time other than during the Change in Control Period, and provided that the Participant executes a general release of known and unknown claims in a customary form reasonably acceptable to the Company and such release has become effective in accordance with its terms on or before the sixtieth (60th) day following such termination of Service, all Units acquired pursuant to this Agreement and then outstanding shall be deemed Vested Units effective as of the date of such termination of Service and shall be settled in accordance with Section 6.1, treating as the Settlement Date for this purpose the later of (a) the sixtieth (60th) day following such termination of Service or (b) the next trading day on which the sale of shares of Stock to be issued in settlement of such Units would not violate the Insider Trading Policy, but in any event no later than the 15th day of the third month following the later of (i) the last day of the calendar year or (ii) the last day of the Company’s taxable year, in which the date of the termination of Service occurred.
		

		
			4.5Parachute Payments.
		

		
			(a)Greatest After-Tax Benefit.    Notwithstanding any provision of this Agreement to the contrary, if any payment or benefit the Participant would receive pursuant to this Agreement or otherwise (collectively, the “Payments”) would constitute a “parachute payment” within the meaning of Section 280G of the Code, and, but for this sentence, would be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then the aggregate amount of the Payments will be either (i) the largest portion of the Payments that would result in no portion of the Payments (after reduction) being subject to the Excise Tax or (ii) the entire Payments, whichever amount after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in the Participant’s receipt, on an after-tax basis, of the greatest amount of the Payments.  Any reduction in the Payments required by this Section 4.5(a) will be made in the following order: (i) reduction of cash payments; (ii) reduction of accelerated vesting of equity awards other than stock options; (iii) reduction of accelerated vesting of stock options; and (iv) reduction of other benefits paid or provided to the Participant.  In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of the Participant’s equity awards.  If two or more equity awards are granted on the same date, each award will be reduced on a pro-rata basis.
		

		
			(b)Determination by Tax Professional.  The professional firm engaged by the Company for general tax purposes as of the day prior to the date of the event that might reasonably be anticipated to result in Payments that would otherwise be subject to the Excise Tax will perform the foregoing calculations.  If the tax firm so engaged by the Company is serving as accountant or auditor for the acquiring company, the Company will appoint a nationally recognized tax firm to make the determinations required by this Section.  The Company will bear all expenses with respect to the determinations by such firm required to be made by this Section.  The Company and the Participant shall furnish such tax firm such information and documents as the tax firm may reasonably request in order to make its required determination.  The tax firm will provide its calculations, together with detailed supporting documentation, to the Company and the Participant as soon as practicable following its engagement.  Any good faith determinations of the tax firm made hereunder will be final, binding and conclusive upon the Company and the Participant.
		

		 


		

			WEST\256993615.1
347684-9014005

		




 

		
			5.Company Reacquisition Right.
		

		
			5.1Grant of Company Reacquisition Right.    Except as otherwise provided by this Agreement, in the event that the Participant’s Service terminates for any reason or no reason, with or without cause, the Participant shall forfeit and the Company shall automatically reacquire all Units which are not, as of the time of such termination, Vested Units  (“Unvested Units”), and the Participant shall not be entitled to any payment therefor (the “Company Reacquisition Right”).
		

		
			5.2Ownership Change Event, Dividends, Distributions and Adjustments.  Upon the occurrence of an Ownership Change Event, a dividend or distribution to the stockholders of the Company paid in shares of Stock or other property, or any other adjustment upon a change in the capital structure of the Company as described in Section 9,  any and all new, substituted or additional securities or other property (other than regular, periodic cash dividends paid on Stock pursuant to the Company’s dividend policy) to which the Participant is entitled by reason of the Participant’s ownership of Unvested Units shall be immediately subject to the Company Reacquisition Right and included in the terms “Units” and “Unvested Units” for all purposes of the Company Reacquisition Right with the same force and effect as the Unvested Units immediately prior to the Ownership Change Event, dividend, distribution or adjustment, as the case may be.  For purposes of determining the number of Vested Units following an Ownership Change Event, dividend, distribution or adjustment, credited Service shall include all Service with any corporation which is a Participating Company at the time the Service is rendered, whether or not such corporation is a Participating Company both before and after any such event.
		

		
			6.Settlement of the Award.
		

		
			6.1Issuance of Shares of Stock.  Subject to the provisions of Section 6.3 below, the Company shall issue to the Participant on the Settlement Date with respect to each Vested Unit to be settled on such date one (1) share of Stock.  Shares of Stock issued in settlement of Units shall not be subject to any restriction on transfer other than any such restriction as may be required pursuant to Section 6.3, Section 7 or the Company’s Insider Trading Policy.
		

		
			6.2Beneficial Ownership of Shares; Certificate Registration.    The Participant hereby authorizes the Company, in its sole discretion, to deposit any or all shares acquired by the Participant pursuant to the settlement of the Award with the Company’s transfer agent, including any successor transfer agent, to be held in book entry form,  or to deposit such shares for the benefit of the Participant with any broker with which the Participant has an account relationship of which the Company has notice.  Except as provided by the foregoing, a certificate for the shares acquired by the Participant shall be registered in the name of the Participant, or, if applicable, in the names of the heirs of the Participant.
		

		
			6.3Restrictions on Grant of the Award and Issuance of Shares.  The grant of the Award and issuance of shares of Stock upon settlement of the Award shall be subject to compliance with all applicable requirements of federal, state or foreign law with respect to such securities.  No shares of Stock may be issued hereunder if the issuance of such shares would constitute a violation of any applicable federal, state or foreign securities laws or other law or regulations or the requirements of any stock exchange or market system upon which the Stock may then be listed.  The inability of the Company to obtain from any regulatory body having jurisdiction the authority, if any, deemed by the Company’s legal counsel to be necessary to the 
		

		 


		

			WEST\256993615.1
347684-9014006

		




 

		lawful issuance of any shares subject to the Award shall relieve the Company of any liability in respect of the failure to issue such shares as to which such requisite authority shall not have been obtained.  As a condition to the settlement of the Award, the Company may require the Participant to satisfy any qualifications that may be necessary or appropriate, to evidence compliance with any applicable law or regulation and to make any representation or warranty with respect thereto as may be requested by the Company.
		

		
			6.4Fractional Shares.  The Company shall not be required to issue fractional shares upon the settlement of the Award.
		

		
			7.Tax Withholding.
		

		
			7.1In General.  At the time the Grant Notice is executed, or at any time thereafter as requested by a Participating Company, the Participant hereby authorizes withholding from payroll and any other amounts payable to the Participant, and otherwise agrees to make adequate provision for, any sums required to satisfy the federal, state, local and foreign tax (including any social insurance) withholding obligations of the Participating Company, if any, which arise in connection with the Award, the vesting of Units or the issuance of shares of Stock in settlement thereof.  The Company shall have no obligation to deliver shares of Stock until the tax withholding obligations of the Participating Company have been satisfied by the Participant.
		

		
			7.2Assignment of Sale Proceeds.    Subject to compliance with applicable law and the Company’s Insider Trading Policy, if permitted by the Company,  the Participant may satisfy the Participating Company’s tax withholding obligations in accordance with procedures established by the Company providing for delivery by the Participant to the Company or a broker approved by the Company of properly executed instructions, in a form approved by the Company, providing for the assignment to the Company of the proceeds of a sale with respect to some or all of the shares being acquired upon settlement of Units.
		

		
			7.3Withholding in Shares.    The Company shall have the right, but not the obligation, to require the Participant to satisfy all or any portion of a Participating Company’s tax withholding obligations by deducting from the shares of Stock otherwise deliverable to the Participant in settlement of the Award a number of whole shares having a fair market value, as determined by the Company as of the date on which the tax withholding obligations arise, not in excess of the amount of such tax withholding obligations determined by the applicable minimum statutory withholding rates.
		

		
			8.Effect of Change in Control.
		

		
			In the event of a Change in Control, except to the extent that the Committee determines to pay the value of Award in cash,  the surviving, continuing, successor, or purchasing corporation or other business entity or parent thereof, as the case may be (the “Acquiror”), may, without the consent of the Participant, assume or continue in full force and effect the Company’s rights and obligations with respect to all or any portion of the outstanding Units or substitute for all or any portion of the outstanding Units substantially equivalent rights with respect to the Acquiror’s stock.  For purposes of this Section, a Unit shall be deemed assumed if, following the Change in Control, the Unit confers the right to receive, subject to the terms and conditions of the Plan and this Agreement, the consideration (whether stock, cash, other securities or property or a combination thereof) to which a holder of a share of Stock on the effective date of the Change in Control was entitled; provided, however, that if such consideration is not solely 
		

		 


		

			WEST\256993615.1
347684-9014007

		




 

		common stock of the Acquiror, the Committee may, with the consent of the Acquiror, provide for the consideration to be received upon settlement of the Unit to consist solely of common stock of the Acquiror equal in Fair Market Value to the per share consideration received by holders of Stock pursuant to the Change in Control.
		

		
			9.Adjustments for Changes in Capital Structure.
		

		
			Subject to any required action by the stockholders of the Company and the requirements of Section 409A of the Code to the extent applicable, in the event of any change in the Stock effected without receipt of consideration by the Company, whether through merger, consolidation, reorganization, reincorporation, recapitalization, reclassification, stock dividend, stock split, reverse stock split, split-up, split-off, spin-off, combination of shares, exchange of shares, or similar change in the capital structure of the Company, or in the event of payment of a dividend or distribution to the stockholders of the Company in a form other than Stock (other than regular, periodic cash dividends paid on Stock pursuant to the Company’s dividend policy) that has a material effect on the Fair Market Value of shares of Stock, appropriate and proportionate adjustments shall be made in the number of Units subject to the Award and/or the number and kind of shares or other property to be issued in settlement of the Award, in order to prevent dilution or enlargement of the Participant’s rights under the Award.  For purposes of the foregoing, conversion of any convertible securities of the Company shall not be treated as “effected without receipt of consideration by the Company.”  Any and all new, substituted or additional securities or other property (other than regular, periodic cash dividends paid on Stock pursuant to the Company’s dividend policy) to which the Participant is entitled by reason of ownership of Units acquired pursuant to this Award will be immediately subject to the provisions of this Award on the same basis as all Units originally acquired hereunder.    Any fractional Unit or share resulting from an adjustment pursuant to this Section shall be rounded down to the nearest whole number.  Such adjustments shall be determined by the Committee, and its determination shall be final, binding and conclusive.
		

		
			10.Rights as a Stockholder, Director, Employee or Consultant.
		

		
			The Participant shall have no rights as a stockholder with respect to any shares which may be issued in settlement of this Award until the date of the issuance of such shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company).  No adjustment shall be made for dividends, distributions or other rights for which the record date is prior to the date the shares are issued, except as provided in Section 9.  If the Participant is an Employee, the Participant understands and acknowledges that, except as otherwise provided in a separate, written employment agreement between a Participating Company and the Participant, the Participant’s employment is “at will” and is for no specified term.  Nothing in this Agreement shall confer upon the Participant any right to continue in the Service of a Participating Company or interfere in any way with any right of the Participating Company Group to terminate the Participant’s Service at any time.
		

		
			11.Legends.
		

		
			The Company may at any time place legends referencing any applicable federal, state or foreign securities law restrictions on all certificates representing shares of stock issued pursuant to this Agreement.  The Participant shall, at the request of the Company, promptly present to the Company any and all certificates representing shares acquired pursuant to this Award in the possession of the Participant in order to carry out the provisions of this Section.
		

		 


		

			WEST\256993615.1
347684-9014008

		




 

		
			12.Compliance with Section 409A.
		

		
			It is intended that any election, payment or benefit which is made or provided pursuant to or in connection with this Award that may result in Section 409A Deferred Compensation shall comply in all respects with the applicable requirements of Section 409A (including applicable regulations or other administrative guidance thereunder, as determined by the Committee in good faith) to avoid the unfavorable tax consequences provided therein for non‐compliance.  In connection with effecting such compliance with Section 409A, the following shall apply:
		

		
			12.1Separation from Service; Required Delay in Payment to Specified Employee.  Notwithstanding anything set forth herein to the contrary, no amount payable pursuant to this Agreement on account of the Participant’s termination of Service which constitutes a “deferral of compensation” within the meaning of the Treasury Regulations issued pursuant to Section 409A of the Code (the “Section 409A Regulations”) shall be paid unless and until the Participant has incurred a “separation from service” within the meaning of the Section 409A Regulations.  Furthermore, to the extent that the Participant is a “specified employee” within the meaning of the Section 409A Regulations as of the date of the Participant’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of the Participant’s separation from service shall paid to the Participant before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of the Participant’s separation from service or, if earlier, the date of the Participant’s death following such separation from service.  All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date.
		

		
			12.2Other Delays in Payment.    Neither the Participant nor the Company shall take any action to accelerate or delay the payment of any benefits under this Agreement in any manner which would not be in compliance with the Section 409A Regulations.
		

		
			12.3Amendments to Comply with Section 409A; Indemnification.    Notwithstanding any other provision of this Agreement to the contrary, the Company is authorized to amend this Agreement, to void or amend any election made by the Participant under this Agreement and/or to delay the payment of any monies and/or provision of any benefits in such manner as may be determined by the Company, in its discretion, to be necessary or appropriate to comply with the Section 409A Regulations without prior notice to or consent of the Participant.  The Participant hereby releases and holds harmless the Company, its directors, officers and stockholders from any and all claims that may arise from or relate to any tax liability, penalties, interest, costs, fees or other liability incurred by the Participant in connection with the Award, including as a result of the application of Section 409A.
		

		
			12.4Advice of Independent Tax Advisor.  The Company has not obtained a tax ruling or other confirmation from the Internal Revenue Service with regard to the application of Section 409A to the Award, and the Company does not represent or warrant that this Agreement will avoid adverse tax consequences to the Participant, including as a result of the application of Section 409A to the Award.  The Participant hereby acknowledges that he or she has been advised to seek the advice of his or her own independent tax advisor prior to entering into this Agreement and is not relying upon any representations of the Company or any of its agents as to the effect of or the advisability of entering into this Agreement.
		

		
			13.Miscellaneous Provisions.
		

		 


		

			WEST\256993615.1
347684-9014009

		




 

		
			13.1Termination or Amendment.  The Committee may terminate or amend the Plan or this Agreement at any time; provided, however, that except as provided in Section 8 in connection with a Change in Control, no such termination or amendment may adversely affect the Participant’s rights under this Agreement without the consent of the Participant unless such termination or amendment is necessary to comply with applicable law or government regulation, including, but not limited to, Section 409A.  No amendment or addition to this Agreement shall be effective unless in writing.
		

		
			13.2Nontransferability of the Award.  Prior to the issuance of shares of Stock on the applicable Settlement Date, neither this Award nor any Units subject to this Award shall be subject in any manner to anticipation, alienation, sale, exchange, transfer, assignment, pledge, encumbrance, or garnishment by creditors of the Participant or the Participant’s beneficiary, except transfer by will or by the laws of descent and distribution.  All rights with respect to the Award shall be exercisable during the Participant’s lifetime only by the Participant or the Participant’s guardian or legal representative.
		

		
			13.3Further Instruments.  The parties hereto agree to execute such further instruments and to take such further action as may reasonably be necessary to carry out the intent of this Agreement.
		

		
			13.4Binding Effect.  This Agreement shall inure to the benefit of the successors and assigns of the Company and, subject to the restrictions on transfer set forth herein, be binding upon the Participant and the Participant’s heirs, executors, administrators, successors and assigns.
		

		
			13.5Delivery of Documents and Notices.  Any document relating to participation in the Plan or any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given (except to the extent that this Agreement provides for effectiveness only upon actual receipt of such notice) upon personal delivery, electronic delivery at the e-mail address, if any, provided for the Participant by a Participating Company, or upon deposit in the U.S. Post Office or foreign postal service, by registered or certified mail, or with a nationally recognized overnight courier service, with postage and fees prepaid, addressed to the other party at the address of such party set forth in the Grant Notice or at such other address as such party may designate in writing from time to time to the other party.
		

		
			(a)Description of Electronic Delivery.  The Plan documents, which may include but do not necessarily include: the Plan, the Grant Notice, this Agreement, the Plan Prospectus, and any reports of the Company provided generally to the Company’s stockholders, may be delivered to the Participant electronically.  In addition, if permitted by the Company, the Participant may deliver electronically the Grant Notice to the Company or to such third party involved in administering the Plan as the Company may designate from time to time.  Such means of electronic delivery may include but do not necessarily include the delivery of a link to a Company intranet or the Internet site of a third party involved in administering the Plan, the delivery of the document via e-mail or such other means of electronic delivery specified by the Company.
		

		
			(b)Consent to Electronic Delivery.  The Participant acknowledges that the Participant has read Section 13.5(a) of this Agreement and consents to the electronic delivery of the Plan documents and, if permitted by the Company, the delivery of the Grant Notice, as described in Section 13.5(a).  The Participant acknowledges that he or she may receive from the Company a paper copy of any documents delivered electronically at no cost to the 
		

		 


		

			WEST\256993615.1
347684-90140010

		




 

		Participant by contacting the Company by telephone or in writing.  The Participant further acknowledges that the Participant will be provided with a paper copy of any documents if the attempted electronic delivery of such documents fails.  Similarly, the Participant understands that the Participant must provide the Company or any designated third party administrator with a paper copy of any documents if the attempted electronic delivery of such documents fails.  The Participant may revoke his or her consent to the electronic delivery of documents described in Section 13.5(a) or may change the electronic mail address to which such documents are to be delivered (if Participant has provided an electronic mail address) at any time by notifying the Company of such revoked consent or revised e-mail address by telephone, postal service or electronic mail.  Finally, the Participant understands that he or she is not required to consent to electronic delivery of documents described in Section 13.5(a).
		

		
			13.6Integrated Agreement.  The Grant Notice, this Agreement and the Plan shall constitute the entire understanding and agreement of the Participant and the Participating Company Group with respect to the subject matter contained herein or therein and supersede any prior agreements, understandings, restrictions, representations, or warranties among the Participant and the Participating Company Group with respect to such subject matter.  To the extent contemplated herein or therein, the provisions of the Grant Notice, this Agreement and the Plan shall survive any settlement of the Award and shall remain in full force and effect.
		

		
			13.7Applicable Law.  This Agreement shall be governed by the laws of the State of California as such laws are applied to agreements between California residents entered into and to be performed entirely within the State of California.
		

		
			13.8Counterparts.  The Grant Notice may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
		

		 


		

			WEST\256993615.1
347684-90140011