basis as of the date thereof) or (2) beneficially owning 15% or more of the outstanding Company Common Stock or any class of outstanding voting securities of the surviving entity or of the
resulting direct or indirect parent of the Company or such surviving entity; (iii) any acquisition involving 15% or more of the Companys consolidated assets (measured on a fair market value basis as of the date thereof); (iv) any
acquisition or license (other than any non-exclusive and non-material license granted by the Company in the ordinary course of business consistent with past practice or
expressly permitted to be granted by the Company by Section 6.1(b)) of, or joint venture, collaboration or other similar transaction with respect to, HPN328 or HPN217 or (v) any combination of the foregoing.
Affiliate means, as to any Person, any other Person that, directly or indirectly, controls, or is controlled by, or is
under common control with, such Person. For this purpose, control (including, with its correlative meanings, controlled by and under common control with) means the possession, directly
or indirectly, of the power to direct or cause the direction of management or policies of a Person, whether through the ownership of securities or partnership or other ownership interests, by contract or otherwise.
Business Day means any day other than Saturday, Sunday or any day on which commercial banks in New York, New York are
authorized or required by applicable Law to remain closed, or, solely for purposes of determining the Closing Date, the Secretary of State of Delaware is authorized or required by applicable Law to remain closed.
Code means the Internal Revenue Code of 1986.
Collaboration Partners means any of the Companys licensees or licensors or any Third Party with which the Company has
entered into a Contract that relates to the research, development, supply, manufacturing, testing, distribution, import, export or commercialization of any Company Product.
Company Charter Documents means the certificate of incorporation and the bylaws of the Company, each as amended, restated,
supplemented or otherwise modified from time to time.
Company Employee Benefit Plan means any benefit plan, program,
policy, practice, trust, fund or Contract maintained, contributed to or required to be contributed to by the Company or under which the Company has or would reasonably be expected to have any liability (whether or not an employee benefit
plan within the meaning of Section 3(3) of ERISA), including any pension, profit-sharing, 401(k) retirement, bonus, incentive compensation, deferred compensation, loan, vacation, sick pay, employee stock ownership, stock purchase, stock
option or other equity based compensation plans, severance, employment, Contractor, death, hospitalization, sickness, or other medical, dental, vision, life, or other insurance, long-or short-term disability, change of control, fringe benefit,
cafeteria plan or any other material employee or fringe benefit plan, program, policy, practice, trust, fund or Contract that provides benefits to current or former employees, non-employee directors or
Contractors of the Company (or beneficiaries thereof).
Company Intellectual Property means all Intellectual Property
owned (whether wholly or jointly with others) by, licensed or sublicensed to, or used or held for use by, the Company, including all Owned Company Intellectual Property and all Non-Owned Company Intellectual
Property.
Company Material Adverse Effect means any event, effect, condition, change, occurrence, development,
circumstance or state of facts, individually or in the aggregate with all other events, effects, conditions, changes, occurrences, developments, circumstances or state of facts, that has had, or would reasonably be expected to have, a material
adverse effect on (i) the business, operations, assets, properties, liabilities, condition (financial or otherwise) or results of operations of the Company, or (ii) the ability of the Company to consummate the Transactions on or before the
Outside Date; provided that no such event, effect, condition, change, occurrence, development, circumstance or state of facts shall be considered in determining
A-2