Revenue Interest Financing Agreement, dated October 28, 2022, by and between Marinus Pharmaceuticals, Inc. and Sagard Healthcare Royalty Partners, LP

Exhibit 10.3

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Execution Version

REVENUE INTEREST FINANCING AGREEMENT

by and between

MARINUS PHARMACEUTICALS, INC.,
as the Company,

and

SAGARD HEALTHCARE ROYALTY PARTNERS, LP, as the Investor

Dated October 28, 2022

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TABLE OF CONTENTS

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REVENUE INTEREST FINANCING AGREEMENT

This REVENUE INTEREST FINANCING AGREEMENT (this “Agreement”) dated as of October 28, 2022 is by and between MARINUS PHARMACEUTICALS, INC., a Delaware corporation (the “Company”), and Sagard Healthcare Royalty Partners, LP, a Cayman Islands exempted limited partnership (the “Investor”). Each of the Company and the Investor are referred to in this Agreement as a “Party” and collectively as the “Parties”.

W I T N E S E T H:

WHEREAS, the Company is developing Included Products for the purpose of commercializing such Included Products in the United States and wishes to obtain financing in respect thereof;

WHEREAS, to raise such financing, the Company desires to sell the Revenue Interest to the Investor in exchange for the Investor’s payment of the Investment Amount on the terms and conditions set forth in this Agreement; and

WHEREAS, the Investor desires to purchase the Revenue Interest from the Company in exchange for payment of the Investment Amount on the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the premises and the mutual agreements, representations and warranties set forth herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, intending to be legally bound, the parties hereto covenant and agree as follows:

“Abbreviated New Drug Application” means (a) an abbreviated new drug application (as set forth in the FDCA at 21 U.S.C. § 355(j) and its implementing regulations at 21 C.F.R. § 314.3, as amended), and (b) all supplements and amendments that may be filed with respect to any of the foregoing.

“Accelerated Underperformance Payment Date” has the meaning set forth in Section 3.1(b).

“Acquisition” means any transaction, or any series of related transactions, by which any Person (for purposes of this definition, an “acquirer”) directly or indirectly, by means of amalgamation, merger, purchase of assets, purchase of Equity Interests, or otherwise, (a) acquires all or substantially all of the assets of any other Person, (b) acquires an entire business line or unit or division of any other Person, (c) with respect to any other Person that is managed or governed by a Board of Directors, acquires control of Equity Interests of such other Person representing more than fifty percent (50%) of the ordinary voting power (determined on a fully-diluted basis)

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for the election of directors of such Person’s Board of Directors, or (d) acquires control of more than fifty percent (50%) of the Equity Interests in any other Person (determined on a fully-diluted basis) that is not managed by a Board of Directors

“Additional Amounts” has the meaning set forth in Section 3.1(i).

“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person.  For purposes of this definition, “control” of a Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of securities entitled to elect the Board of Directors or management board, by contract or otherwise, and the terms “controlled” and “controlling” have meanings correlative to the foregoing.

“Agreement” has the meaning set forth in the preamble.

“Annual Net Revenues” means, with respect to any Calendar Year, the aggregate amount of Net Revenues in the United States for that Calendar Year.

“Anti-Corruption Laws” means all Laws of any jurisdiction applicable to the Company or any of its Affiliates from time to time concerning or relating to bribery or corruption, including without limitation the United States Foreign Corrupt Practices Act of 1977, as amended, the UK Bribery Act 2010 and other similar legislation in any other jurisdictions.

“Anti-Terrorism Laws” means any Laws relating to terrorism or money laundering, including without limitation Executive Order No. 13224 (effective September 24, 2001), the USA PATRIOT Act, the laws comprising or implementing the Bank Secrecy Act, the Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto.

“Applicable Law” means, with respect to any Person, all Laws, rules, regulations and orders of Governmental Authorities applicable to such Person or any of its properties or assets.

“Applicable Tiered Percentage” means for each Calendar Quarter, the percentage as set forth in the chart below:

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“Audited Financial Statements” means the audited consolidated balance sheets of the Company and its Subsidiaries for the fiscal years ended December 31, 2020 and December 31, 2021, and the related consolidated statements of income or operations and comprehensive loss, stockholders’ equity and cash flows for such fiscal years of the Company and its Subsidiaries then ended, including the notes thereto, audited by independent public accountants of recognized national standing and prepared in conformity with GAAP.

“Bankruptcy Event” means the occurrence of any of the following in respect of a Person: (a) such Person shall generally not, shall be unable to, or an admission in writing by such Person of its inability to, pay its debts as they come due or a general assignment by such Person for the benefit of creditors; (b) the filing of any petition by such Person seeking to adjudicate itself as bankrupt or insolvent, or seeking for itself any liquidation, winding-up, reorganization, arrangement, adjustment, protection, relief or composition of such Person or its debts under any Applicable Law relating to bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization, examination, relief of debtors or other similar Applicable Law now or hereafter in effect, or seeking, consenting to or acquiescing in the entry of an order for relief in any case under any such Applicable Law, or the appointment of or taking possession by a receiver, trustee, custodian, liquidator, examiner, assignee, sequestrator or other similar official for such Person or for any substantial part of its property; (c) corporate or other entity action taken by such Person to authorize any of the actions set forth in clause (a) or clause (b) above; or (d) without the consent or acquiescence of such Person, the commencement of an action seeking entry of an order for relief or approval of a petition for relief or reorganization or any other petition seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or other similar relief under any present or future bankruptcy, insolvency or similar Applicable Law, or the filing of any such petition against such Person, or, without the consent or acquiescence of such Person, the commencement of an action seeking entry of an order appointing a trustee, custodian, receiver or liquidator of such Person or of all or any substantial part of the property of such Person, in each case where such petition or order shall remain unstayed or shall not have been stayed or dismissed within 90 days from entry thereof.

“BARDA Agreement” means the BARDA Agreement, dated as of September 8, 2020, by and between the Company and Biomedical Advance Research and Development Authority, a division of the U.S. Department of Health and Human Services’ Office of the Assistant Secretary for Preparedness and Response, as amended, restated, amended and restated or otherwise modified from time to time.

“Board of Directors” means (a) with respect to a company or corporation, the board of directors of the company or corporation or any committee thereof duly authorized to act on behalf of such board, (b) with respect to a partnership, the board of directors or similar governing

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body of the general partner of the partnership, (c) with respect to a limited liability company, the managing member or members or any controlling committee of managing members thereof, and (d) with respect to any other Person, the board or committee of such Person serving a similar function.

“Business” means, at any time, a collective reference to the businesses operated by the Company and its Subsidiaries at such time.

“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by Applicable Law to remain closed.

“Calendar Quarter” means, for the first calendar quarter, the period beginning on the Closing Date and ending on the last day of the calendar quarter in which the Closing Date falls, and thereafter each successive period of three (3) consecutive calendar months ending on March 31, June 30, September 30 or December 31.

“Calendar Year” means (a) for the first such Calendar Year, the period beginning on the Closing Date and ending on December 31 of the calendar year in which the Closing Date occurs, (b) for each calendar year of the Payment Term thereafter, each successive period beginning on January 1 and ending twelve (12) consecutive calendar months later on December 31, and (c) for the last year of the Payment Term, the period beginning on January 1 of the year in which this Agreement expires or terminates and ending on the effective date of expiration or termination of this Agreement.

“Call Option” has the meaning set forth in Section 3.1(d).

“CDA” means the Confidentiality Agreement, dated as of February 11, 2022, by and between Sagard Healthcare Royalty Partners, LP, a Cayman Islands exempted limited partnership, and the Company.

“CFC” has the meaning set forth in the Oaktree Credit Agreement.

“CFC Holding Company” has the meaning set forth in the Oaktree Credit Agreement.

“Change of Control” means the occurrence of any of the following events:

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“Claims” means (and includes) any claim, demand, complaint, grievance, action, application, suit, cause of action, order, charge, indictment, prosecution, judgement or other similar process, whether in respect of assessments or reassessments, debts, liabilities, expenses, costs, damages or losses, contingent or otherwise, whether liquidated or unliquidated, matured or unmatured, disputed or undisputed, contractual, legal or equitable, including loss of value, professional fees, including fees and disbursements of legal counsel, and all costs incurred in investigating or pursuing any of the foregoing or any proceeding relating to any of the foregoing.

“Closing” has the meaning set forth in Section 8.1.

“Closing Date” has the meaning set forth in Section 8.1.

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“Collateral” shall have the meaning set forth in the Security Agreement.

“Commercialization” means any and all activities with respect to the distribution, marketing, detailing, promotion, selling and securing of reimbursement of Included Products in the United States after Marketing Authorization for an Included Product in the United States has been obtained, which shall include, as applicable, post-launch marketing, promoting, detailing, marketing research, distributing, customer service, selling the Included Product, importing, exporting or transporting the Included Product for sale, and regulatory compliance with respect to the foregoing.  When used as a verb, “Commercialize” means to engage in Commercialization.

“Commercially Reasonable and Diligent Efforts” means, with respect to the efforts to be expended with respect to any Included Product in the United States, such efforts and resources normally used by a company in the biotechnology industry of a size and with a product portfolio comparable, and with similar resources available, to the Company and its Affiliates, with the marketing, sale and product development and research plans similar to similarly situated companies in the biopharmaceutical industry, taken as a whole, which pharmaceutical product is at a similar stage in its product life and of similar market and profit potential as such Included Product, taking into account efficacy, safety, approved labeling, the competitiveness of alternative products, pricing/reimbursement for the pharmaceutical product, the intellectual property and regulatory protection of the pharmaceutical product, the regulatory structure and the profitability of the pharmaceutical product, all as measured in the United States by the facts and circumstances in existence at the time such efforts are due.

“Company” has the meaning set forth in the preamble.

“Company Indemnification Cap” has the meaning set forth in Section 10.6(a).

“Company Indemnification Obligations” has the meaning set forth in Section 10.1.

“Company Indemnified Party” has the meaning set forth in Section 10.2.

“Company Party” means any of the Company, the Guarantors and the Pledged Subsidiaries.

“Comparable Yield” has the meaning set forth in Section 6.21(a).

“Compliance Certificate” means a certificate substantially in the form of Exhibit E.

“Confidential Information” means any and all technical and non-technical non-public information provided by either Party to the other (including, without limitation, the reports provided pursuant to Section 3.4 and any notices or other information provided pursuant to Section 6.3), either directly or indirectly, and including any materials prepared on the basis of such information, whether in graphic, written, electronic or oral form, and marked or identified at the time of disclosure as confidential, or which by its context would reasonably be deemed to be confidential, including without limitation information relating to a Party’s technology, products and services, and any business, financial or customer information relating to a Party.  The existence and terms of this Agreement shall be deemed the Confidential Information of both Parties.  For clarity, this Agreement shall supersede the CDA and the CDA shall cease to be of any force and

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effect following the execution of this Agreement; provided, however, that all information falling within the definition of “Confidential Information” set forth in the CDA shall also be deemed Confidential Information disclosed pursuant to this Agreement, and the use and disclosure of such Confidential Information following the date of this Agreement shall be subject to the provisions of ARTICLE IX.

“Contract” means any contract, agreement, commitment, government bid, instrument, license, sublicense, subcontract, real or personal property lease or sublease, letters of intent, memorandum of understanding, offer letter, note, indenture, mortgage, bond, letter of credit, guarantee, purchase order, or other legally binding business arrangement, whether written or oral, together with any amendments, restatements, supplements or other modifications thereto.

“Contractual Obligation” means, as to any Person, any obligation arising under any Contract.

“Control” means, with respect to any Intellectual Property, that the applicable Person owns or has a license to such item or right and has the ability to grant to another party a license, sublicense, or rights of access and use under such item or right without violating the terms or conditions of any agreement or other arrangement between such Person and any Third Party in existence as of the time such party would be required hereunder to grant such license, sublicense, or rights of access and use.  “Controlling” and “Controlled” have meanings correlative thereto.

“Convertible Notes Redemption Date” has the meaning set forth in Section 3.2(b).

“Copyright License” means any agreement, whether written or oral, providing for the grant of any right to use any Work under any Copyright.

“Copyrights” means (a) all proprietary rights afforded Works pursuant to Title 17 of the United States Code, including, without limitation, all rights in mask works, copyrights and original designs, and all proprietary rights afforded such Works by other countries for the full term thereof (and including all rights accruing by virtue of bilateral or international treaties and conventions thereto), whether registered or unregistered, including, but not limited to, all applications for registration, renewals, extensions, reversions or restorations thereof now or hereafter provided for by Law and all rights to make applications for registrations and recordations, regardless of the medium of fixation or means of expression, which are owned by or licensed to the Company or any Subsidiary or with respect to which the Company or any Subsidiary is authorized or granted rights under or to; and (b) all copyright rights under the copyright Laws of the United States and all other countries for the full term thereof (and including all rights accruing by virtue of bilateral or international copyright treaties and conventions), whether registered or unregistered, including, but not limited to, all applications for registration, renewals, extensions, reversions or restorations of copyrights now or hereafter provided for by Law and all rights to make applications for copyright registrations and recordations, regardless of the medium of fixation or means of expression, which are owned by or licensed to the Company or any Subsidiary or with respect to which the Company or any Subsidiary is authorized or granted rights under or to.

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“Cover” or “Covering” means, with reference to a Patent and a product, composition, article of manufacture, or method, that the manufacture, practice, use, offer for sale, sale or importation of the product, composition, article of manufacture, or method, would infringe a Valid Claim of such Patent in the country in which such activity occurs without a license thereto (or ownership thereof).

“Current Market” means, as of any date of determination, the Principal Market on which the shares of common stock of the Company are then listed, traded and quoted.

“CyDex License Agreement” means the License Agreement, dated March 31, 2017, between the CyDex Pharmaceuticals, Inc. (“CyDex”) and the Company.

“CyDex Supply Agreement” means the Supply Agreement, dated March 31, 2017, between CyDex and the Company.

“DEA” means the U.S. Drug Enforcement Administration or any successor agency or authority thereto.

“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, general equitable principles and principles of public policy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect.

“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.

“Deferred Acquisition Consideration” means any purchase price adjustments, royalty, earn-out, milestone payments, contingent or other deferred payment payments of a similar nature (including any non-compete payments and consulting payments) made in connection with any Permitted Acquisition or other acquisition or investment permitted under this Agreement.

“Designated Jurisdiction” means any country, territory or region to the extent that such country, territory or region is the subject of any Sanction.

“Development” means all activities related to research, development, creation and prosecution of Intellectual Property, pre-clinical and other non-clinical testing, test method development and stability testing, toxicology, formulation, process development, manufacturing scale-up, qualification and validation, quality assurance/quality control, clinical studies, including Manufacturing in support thereof, statistical analysis and report writing, the preparation and submission of Drug Applications, regulatory affairs with respect to the foregoing and all other activities, in each case necessary or reasonably useful or otherwise requested or required by a Regulatory Agency as a condition or in support of obtaining or maintaining a Regulatory Approval in the United States.  When used as a verb, “Develop” means to engage in Development.

“Disposition” or “Dispose” means the sale, transfer, assignment, conveyance, out-license or out-sublicense, lease, sublease (as lessor or sub-lessor) or other disposition (including any Sale and Leaseback Transaction) of any property included in the Collateral or the Product

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Assets (or owned by any Subsidiary and relating to an Included Product), by any Company Party or any Subsidiary of the Company, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired (including accounts receivable), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith, or forgiveness, release or compromise of any amount owed to any Company Party or Subsidiary, in each case, in one transaction or a series of transactions, but excluding the following (collectively, the “Permitted Transfers”): (a) the sale of inventory, including to end users (through wholesalers or other typical sales channels) or to distributors, in the ordinary course of business in an arm’s-length transaction, or the sale, transfer or other disposition of the inventory for patient assistance programs or compassionate use in the ordinary course of business, (b) dispositions (including by way of abandonment or cancellation) in the ordinary course of business in an arm’s-length transaction of any tangible property that is obsolete or worn out or no longer used or useful in the conduct of the Business of the Company or any of its Subsidiaries, (c) any sale, lease, license, transfer or other disposition of property (i) by one Company Party to another Company Party, (ii) by any Subsidiary that is not a Company Party of any or all of its property (upon voluntary liquidation or otherwise) to any Company Party or (iii) by any Subsidiary that is not a Company Party of any or all of its property (upon voluntary liquidation or otherwise) to any Subsidiary that is not a Company Party; provided, that, if the transferor of such property is a Company Party, the transferee thereof must be a Company Party, (d) dispositions in the ordinary course of business consisting of the abandonment of IP Rights (other than any Orange Book Patent owned by the Company) which, in the reasonable good faith determination of the Company, (x) are not material to the conduct of the Business of the Company or any of its Subsidiaries and (y) could not reasonably be expected to result in a Material Adverse Effect, or the abandoning of Patent applications or specific claims under such applications that the Company reasonably believes will not be allowed or granted, (e) licenses, sublicenses, leases or subleases (other than relating to the IP Rights (except pursuant to Permitted Licenses), in each case) granted to Third Parties in the ordinary course of business and not interfering with the Business of the Company or any of its Subsidiaries, (f) any Involuntary Disposition (other than, for the avoidance of doubt, of any IP Rights (except pursuant to Permitted Licenses)), (g) Permitted Licenses and the transfer of any non-U.S. Product Authorization (as defined in the Oaktree Credit Agreement) in connection a Permitted License under subpart (b) of the definition of “Permitted License” provided such Permitted License does not include a transfer of or license to any U.S. Product Authorization, (h) the sale, transfer, issuance or other disposition of a de minimis number of shares of the Equity Interests of a CFC (as defined in the Oaktree Credit Agreement) in order to qualify members of the governing body of such CFC if required by Applicable Law, (i) sales, transfers and other dispositions of unpaid and overdue accounts receivable in connection with the compromise, settlement or collection thereof in the ordinary course of business and not as part of a financing transaction, (j) the forgiveness, release or compromise of any amount owed to any Company Party or Subsidiary in the ordinary course of business, (k) the unwinding of any Hedging Agreement permitted by Section 7.5 hereof pursuant to its terms, (l) in connection with any transaction permitted under Section 7.5 hereof (but only if such transaction does not involve the transfer, disposition, pledge or license of any IP Rights (except pursuant to Permitted Licenses)), (m) so long as no Default or Event of Default has occurred and is continuing (or could reasonably be expected to occur after giving effect to such Disposition), other Dispositions (other than with respect to IP Rights (except pursuant to Permitted Licenses)) with a fair market value not in excess of $5,000,000 (or the Equivalent Amount in other currencies) in the aggregate in any fiscal year,

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(n) other Dispositions (other than with respect the IP Rights (except pursuant to Permitted Licenses)) not in excess of $12,000,000 (or the Equivalent Amount in other currencies) in the aggregate in any fiscal year in which any Company Party or Subsidiary will receive cash proceeds in an amount equal to no less than seventy-five percent (75%) of the total consideration (fixed or contingent) paid or payable to such Company Party or Subsidiary, but only so long as, the net cash proceeds of such Disposition are used by the Company or such Subsidiary (x) to prepay any Permitted Secured Facility if the terms of such Permitted Secured Facility require such prepayment or (y) unless otherwise waived by the Investor in its sole discretion, for working capital purposes, capital expenditures, Investments, Permitted Acquisitions or expenses associated with Commercialization with respect to any Included Product, (o) [reserved], (p) dispositions of cash and Permitted Cash Equivalent Investments in the ordinary course of business or otherwise in transactions permitted hereunder, (q) to the extent constituting a Disposition, any Permitted Liens, and (r) the sale or transfer of the Revenue Strip Proceeds pursuant to a Revenue Interest Financing.  It is understood and agreed that, notwithstanding anything to the contrary set forth in this definition, in no event shall a “Permitted Transfer” include any license of any Included Product or the license, transfer or pledge of any IP Rights, in each case, other than Permitted Licenses and Permitted Liens.

“Disputes” has the meaning set forth in Section 4.10(k).

“Disqualified Equity Interests” means, with respect to any Person, any Equity Interest of such Person that, by its terms (or by the terms of any security or other Equity Interest into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (i) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable (other than solely for (x) Equity Interests that are not Disqualified Equity Interests and (y) cash in lieu of fractional shares), including pursuant to a sinking fund obligation or otherwise, (ii) is redeemable at the option of the holder thereof (other than solely for (x) Equity Interests that are not Disqualified Equity Interests and (y) cash in lieu of fractional shares), in whole or in part, (iii) provides for the scheduled payments of dividends or other distributions in cash (other than the payment of cash in lieu of redemption of fractional shares) or other securities that would constitute Disqualified Equity Interests, or (iv) is or becomes convertible into or exchangeable for (unless at the sole option of the issuer thereof) Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is 180 days after the later of (x) December 31, 2027 and (y) the “Maturity Date” or such similar term under the Permitted Debt Facility Documents in respect of the then-outstanding Permitted Secured Facility; provided, that, any Equity Interests that would not constitute Disqualified Equity Interests but for provisions thereof giving holders thereof (or the holders of any security into or for which such Equity Interests are convertible, exchangeable or exercisable) the right to require the issuer thereof to redeem or repurchase such Equity Interests upon the occurrence of a change in control occurring prior to the 180th day after the later of (x) December 31, 2027 and (y) the “Maturity Date” or such similar term under the Permitted Debt Facility Documents in respect of the then-outstanding Permitted Secured Facility shall not constitute Disqualified Equity Interests if such Equity Interests provide, to the satisfaction of the Investor in its sole discretion, that the issuer thereof will not redeem or repurchase any such Equity Interests pursuant to such provisions prior to the payment in full of all obligations (other than contingent indemnification obligations for which no claim has been asserted) under the Permitted Debt Facility Documents in respect of the then-outstanding Permitted Secured Facility; provided,

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further, that, if such Equity Interests are issued pursuant to a plan for the benefit of employees of the Company or any Subsidiary or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Equity Interests solely because such employee may deliver such Equity Interests to the Company and its Subsidiaries (or the Company or such Subsidiary withholds such Equity Interests) in satisfaction of any exercise price or tax withholding obligations with respect to such Equity Interests.

“Dollar” or the sign “$” means United States dollars.

“Domain Names” means all domain names and URLs that are registered and/or owned by or licensed to the Company or any Subsidiary or with respect to which the Company or any Subsidiary is authorized or granted rights under or to.

“Drug Application” means a New Drug Application, a Supplemental Application or an Abbreviated New Drug Application for any Included Product, as appropriate, in each case of the Company or any Subsidiary.

“EMA” means the European Medicines Agency or any successor agency or authority thereto.

“Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member, membership or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.  Notwithstanding the foregoing, in no event shall any Indebtedness convertible or exchangeable into Equity Interests constitute “Equity Interests” hereunder.

“Equivalent Amount” means, with respect to an amount denominated in one currency, the amount in another currency that could be purchased by the amount in the first currency determined by reference to the Exchange Rate at the time of determination.

“ERISA” means the Employee Retirement Income Security Act of 1974 as amended.

“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Company within the meaning of Section 414(b) or (c) of the Internal Revenue Code (and Sections 414(m) and (o) of the Internal Revenue Code for purposes of provisions relating to Section 412 of the Internal Revenue Code).

“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan, (b) the withdrawal of the Company or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a

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withdrawal under Section 4062(e) of ERISA, (c) a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) by the Company or any ERISA Affiliate from a Multiemployer Plan, (d) the filing by the plan administrator of a notice of intent to terminate a Pension Plan or the treatment of a Pension Plan amendment as a termination under Sections 4041 of ERISA, (e) the institution by the PBGC of proceedings under Section 4042 of ERISA to terminate a Pension Plan, (f) the determination that any Multiemployer Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Section 432 of the Internal Revenue Code or Section 305 of ERISA or is insolvent, within the meaning of Section 4245 of ERISA, or has been terminated, within the meaning of Section 4041A of ERISA, (g) the determination that any Pension Plan is in at-risk status within the meaning of Section 303 of ERISA, or (h) the imposition of any liability pursuant to Sections 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA upon the Company or any ERISA Affiliate.

“Event of Default” means any of the events set forth in Section 11.1.

“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

“Exchange Rate” means, as of any date, the rate at which any currency may be exchanged into another currency, as set forth on the relevant Bloomberg screen at or about 11:00 a.m. (Eastern time) on such date. In the event that such rate does not appear on the Bloomberg screen, the “Exchange Rate” shall be determined by reference to such other publicly available service for displaying exchange rates as may be reasonably designated by the Investor.

“Excluded Liabilities and Obligations” has the meaning set forth in Section 2.3.

“Excluded Taxes” means (i) Taxes imposed on or measured by the Investor’s net income, however denominated, franchise (and similar) Taxes imposed in lieu of net income Taxes, and branch profits taxes (or any similar taxes), in each case, imposed by any jurisdiction as a result of the Investor being organized in or having its principal office in such jurisdiction, or as a result of any other present or former connection between the Investor and such jurisdiction other than any connections arising from executing, delivering, being a party to, engaging in any transactions pursuant to, performing its obligations under, receiving payments under, or enforcing this Agreement, (ii) Taxes attributable to the failure of the Investor to comply with Section 6.21(b), (iii) any U.S. federal withholding Taxes imposed on amounts payable to or for the account of the Investor pursuant to a law in effect on the date on which the Investor acquires the Revenue Interest, and (iv) any federal withholding Taxes imposed under FATCA.

“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to current Section 1471(b)(1) of the Internal Revenue Code (or any amended or successor version described above) and any fiscal or regulatory legislation, rules or official administrative guidance adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and that implement such Sections of the Internal Revenue Code.

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“FCPA” has the meaning set forth in Section 4.23(b).

“FDA” means the U.S. Food and Drug Administration or any successor agency or authority thereto.

“FDCA” means the United States Federal Food, Drug and Cosmetic Act (21 U.S.C. § 301 et seq.), as amended.

“Financial Statements” means the Audited Financial Statements and the Interim Financial Statements.

“Fundamental Representations” means those representations and warranties of the Company set forth in Section 4.1 (Organization), Section 4.2 (No Conflicts), Section 4.3 (Authorization), Section 4.4 (Ownership), Section 4.8 (No Broker’s Fees), Section 4.10 (Intellectual Property Matters), Section 4.14 (Bankruptcy), Section 4.22 (Perfection of Security Interests), Section 4.23 (Sanctions Concerns; Anti-Corruption Laws; PATRIOT Act), and Section 4.25 (Compliance of Included Products).

“GAAP” means generally accepted accounting principles in effect as the standard financial accounting guidelines in the United States from time to time (consistently applied and on a basis consistent with the accounting policies, practices, procedures, valuation methods and principles used in preparing the Financial Statements), and any successor thereto; provided that if a transition in such generally accepted accounting principles would substantively change the recognition of revenue with respect to Net Revenues (defined as of the Closing Date) and its calculation as set forth in this Agreement, then the Parties shall mutually agree to amendments to this Agreement in order to cause the amount of Revenue Interests as determined after giving effect to such transition in generally accepted accounting principles to be substantially the same as the amount of Revenue Interests as determined under generally accepted accounting principles in effect as the standard financial accounting guidelines in the United States as of the Closing Date.

“Generic Product” means, with respect to an Included Product in the United States, any product, other than such Included Product, that is with respect to products sold in the U.S., approved through an Abbreviated New Drug Application, or an application submitted under Section 505(b)(2) of the FDCA (21 U.S.C § 355(b)(2)), that references any New Drug Application for such Included Product (or future functional equivalent) listed in the FDA Publication “Approved Drug Products with Therapeutic Equivalence Evaluations” (known as the Orange Book).

“Governmental Authority” means the government of the United States, any other nation or any political subdivision thereof, whether state, local or otherwise, and any agency, authority (including supranational authority), commission, instrumentality, regulatory body, court, central bank or other Person exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government, including each Patent Office, the FDA, the DEA, the EMA, and any other government authority in any jurisdiction.

“Governmental Licenses” means all authorizations issuing from a Governmental Authority, including the FDA, DEA and EMA, based upon or as a result of applications to and requests for approval from a Governmental Authority for the right to manufacture, import, store,

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market, promote, advertise, offer for sale, sell, use and/or otherwise distribute an Included Product, which are owned by or licensed to the Company or any Subsidiary, acquired by the Company or any Subsidiary via assignment, purchase or otherwise or that the Company or any Subsidiary is authorized or granted rights under or to.

“Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (ii) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (iv) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided, that the term Guarantee shall not include (x) endorsements for collection or deposit and (y) guarantees of operating leases, in each case, in the ordinary course of business.

“Guarantors” means (a) each Subsidiary that owns any portion of the Collateral as of the Closing Date and (b) any other Subsidiary of the Company that executes and delivers a Joinder Agreement pursuant to Section 6.1.

“Guaranty” means a customary guaranty, substantially in the form of Exhibit G attached hereto, to be executed in favor of the Investor by each of the Guarantors, as amended or modified from time to time in accordance with the terms hereof.

“Hard Cap” means one hundred ninety percent (190%) of the Investment Amount.

“Hedging Agreement” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.  

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“Included Product” means (a) each pharmaceutical product listed on Schedule 4.25(b), and (b) any pharmaceutical products that contain ganaxolone, in each case with any dosage form, dosing regimen, or strength, or any improvements related thereto.

“Included Product Patent Rights” means any Patent Rights relating to the Included Products, including the Owned Included Product Patent Rights and the Licensed Included Product Patent Rights.  

“Included Product Payment Amount” means, for each Calendar Quarter, an amount equal to the Applicable Tiered Percentage multiplied by the Quarterly Net Revenues for such Calendar Quarter.  The Included Product Payment Amount for each Quarterly Payment Date shall be determined in a manner consistent with the example of such calculation set forth in Exhibit F.

“IND” means (i) (x) an investigational new drug application (as defined and provided for in FDA’s implementing regulations at 21 C.F.R. Part 312) that is required to be filed with the FDA before beginning clinical testing in human subjects, or any successor application or procedure and (y) any similar application or functional equivalent relating to any investigational new drug application applicable to or required by any non-U.S. Governmental Authority, and (ii) all supplements and amendments that may be filed with respect to the foregoing.

“Indebtedness” of any Person means, without duplication, (a) any obligation of such Person for borrowed money, (b) any obligation of such Person evidenced by a bond, debenture, note, loan agreement or other similar instrument, (c) all obligations of such Person upon which interest charges are customarily paid (excluding interest penalties for late payments under commercial contracts entered into in the ordinary course of business and, for the avoidance of doubt, which commercial contracts do not relate to obligations for borrowed money or purchase money indebtedness), (d) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (e) any obligation of such Person to pay the deferred purchase price of property or services (excluding (i) any royalty or other ongoing and recurring payments based exclusively on a percentage of sales under any license or other agreement, (ii) trade accounts payable incurred in the ordinary course of business and not overdue by more than forty-five (45) days or otherwise being disputed in good faith, and (iii) payroll liabilities and deferred compensation), (f) any obligation of such Person as lessee under a capital lease (under GAAP as in effect on the date hereof), (g) obligations under any Hedging Agreement, currency swaps, forwards, futures or derivative transactions, (h) any obligation of such Person, contingent or otherwise, to reimburse any other Person in respect of amounts paid under a letter of credit or other guaranty issued by such other Person, (i) any Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) a Lien on any asset owned or being purchased by such Person, whether or not such Indebtedness shall have been assumed by such Person or is limited in recourse, (j) any Indebtedness of others guaranteed by such Person, (k) any Disqualified Equity Interests (as defined in the Oaktree Credit Agreement) of such Person, (l) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances, (m) all milestone and similar payments of such Person under any license agreement or other agreement, including any purchase price adjustment, earnout, milestone payments, contingent payment or deferred payment of a similar nature (including any non-compete payments and consulting payments) incurred in connection with any such license agreement or other agreement (but excluding any royalty or other ongoing and

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recurring payments based exclusively on a percentage of sales under any such license or other agreement), and (n) all other obligations required to be classified as indebtedness of such Person under GAAP; provided that notwithstanding the foregoing, Indebtedness shall not include accrued expenses, deferred rent, deferred taxes, deferred compensation or customary obligations under employment agreements.  The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.

“Indemnified Taxes” means all Taxes imposed on or with respect to any payment made by or on account of any obligation of the Company under this Agreement, other than Excluded Taxes.

“Intellectual Property” means all intellectual property, including but not limited to all proprietary information, trade secrets, Know-How, utility models; confidential information; inventions (whether patentable or unpatentable and whether or not reduced to practice or claimed in a pending patent application) and improvements thereto, Patents, registered or unregistered Trademarks, trade names and service marks (including all goodwill associated therewith), registered and unregistered Copyrights and all applications thereof.

“Intercompany Subordination Agreement” means a subordination agreement executed and delivered by each Company Party and each of its Subsidiaries, pursuant to which all obligations in respect of any Indebtedness owing to any such Person by a Company Party shall be subordinated to the prior payment in full in cash of all Obligations, such agreement to be in form and substance reasonably satisfactory to the Investor.

“Intercreditor Agreement” means that certain Intercreditor Agreement by and between the Investor and Oaktree Fund Administration, LLC, and any other Permitted Debt Creditors under clause (a) of the definition of “Permitted Secured Facility” and acknowledged and agreed to by the Company, dated as of the Closing Date in substantially the form attached hereto as Exhibit B, as amended, amended and restated, supplement and otherwise modified from time to time in accordance with the terms thereof.

“Interim Financial Statements” means the unaudited consolidated balance sheets of the Company and its Subsidiaries for the three-month period ended June 30, 2022, and the related consolidated statements of income or operation, stockholders’ equity and cash flows for such period of the Company and its Subsidiaries, including the notes thereto.

“Internal Revenue Code” means the United States Internal Revenue Code of 1986, as amended.

“Investment” means, for any Person: (i) the acquisition (whether for cash, property, services or securities or otherwise) of any debt or Equity Interests, bonds, notes, debentures, partnership or other ownership interests or other securities of any other Person (including any “short sale” or any sale of any securities at a time when such securities are not owned by the Person entering into such sale); (ii) the making of any deposit with, or advance, loan, assumption of debt

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or other extension of credit to, or capital contribution in any other Person (including the purchase of property from another Person subject to an understanding or agreement, contingent or otherwise, to resell such property to such Person), but excluding any such advance, loan or extension of credit having a term not exceeding ninety (90) days arising in connection with the sale of inventory or supplies by such Person in the ordinary course of business; or (iii) the entering into of any Guarantee of, or other contingent obligation with respect to, Indebtedness or other liability of any other Person and (without duplication) any amount committed to be advanced, lent or extended to such Person.  The amount of an Investment shall be the amount actually invested (which, in the case of any Investment constituting the contribution of an asset or property, shall be based on such Person’s good faith estimate of the fair market value of such asset or property at the time such Investment is made), less the amount of cash received or returned for such Investment, without adjustment for subsequent increases or decreases in the value of such Investment or write-ups, write-downs or write-offs with respect thereto; provided that in no event shall such amount be less than zero or increase any basket or amount pursuant to Section 7.5 above the fixed amount set forth therein. Notwithstanding anything to the contrary in the foregoing, the purchase of any Permitted Bond Hedge Transaction by the Company or any of its Subsidiaries and the performance of its obligations thereunder shall not be an Investment.

“Investment Amount” has the meaning set forth in Section 2.2(a).

“Investor” has the meaning set forth in the preamble.

“Investor Account” means such account as designated by the Investor to the Company in writing from time to time.

“Investor Indemnification Obligations” has the meaning set forth in Section 10.2.

“Investor Indemnified Party” has the meaning set forth in Section 10.1.

“Involuntary Disposition” means any Disposition resulting from the damage to or destruction of, or any condemnation of, any property of any Company Party or any of its Subsidiaries.

“IP Rights” means, collectively, all Confidential Information, all Know-How, all Copyrights, all Copyright Licenses, all Domain Names, all Drug Applications, all Governmental Licenses, all applications and requests for Governmental Licenses, all Patents, all License Agreements, all Patent Rights (including, for the avoidance of doubt, the Included Product Patent Rights) and all Patent Term Extensions (and applications for Patent Term Extension) with respect thereto, all Proprietary Databases, all Proprietary Software, all Trademarks, all Trademark Licenses, all Trade Secrets, all Websites, all Website Agreements, all Product Registrations, Regulatory Approvals, Marketing Authorizations, Regulatory Exclusivities, and Regulatory Documentation, in each case, which are owned or Controlled by, issued or licensed to, licensed by, or hereafter acquired or licensed by, the Company or any Subsidiary, in each such case, relating to the Development, Manufacture or Commercialization of any Included Products in any jurisdiction, including (but not limited to) the items listed on Schedule 4.10.

“IRS” means the United States Internal Revenue Service.

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“Joinder Agreement” means a joinder agreement, in form and substance satisfactory to the Investor, executed and delivered by each Subsidiary in accordance with the provisions of Section 6.1.

“Joint Venture” means a joint venture, partnership or other similar arrangement, in corporate, partnership or similar legal form with a Person other than Company or its Subsidiaries.

“Know-How” means all non-public information, results and data of any type whatsoever, in any tangible or intangible form (and whether or not patentable), including databases, practices, methods, techniques, specifications, formulations, formulae, knowledge, skill, experience, data and results (including pharmacological, medicinal chemistry, biological, chemical, biochemical, toxicological and clinical study data and results), analytical and quality control data, stability data, studies and procedures, and manufacturing process and development information, results and data.

“Knowledge” means, with respect to the Company, (a) for purposes of Article IV, the actual knowledge, after due inquiry, as of the date of this Agreement, of any of the officers of the Company identified on Schedule 1.1-1, and (b) for all other purposes of this Agreement, the actual knowledge, after due inquiry, as of a specified time, of any of the officers of the Company identified on Schedule 1.1-1 or any successor to any such officer holding the same or substantially similar officer position at such time.

“Laws” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case, whether or not, having the force of law.

“Legal Maturity Date” means December 31, 2032.

“License Agreement” has the meaning set forth in Section 4.11, including (i) each agreement identified on Schedule 1.1-3 as of the Closing Date, (ii) any New License Agreements which may be added to Schedule 1.1-3, and (iii) each Permitted License.

“Licensed Included Product Patent Rights” means all Included Product Patent Rights licensed or sublicensed to the Company or any of its Subsidiaries.

“Licensee” means, with respect to any Included Product, any counterparty to a License Agreement.

“Lien” means (a) any mortgage, lien, license, pledge, hypothecation, charge, security interest, or other encumbrance of any kind or character whatsoever, whether or not filed, recorded or otherwise perfected under Applicable Law, or any lease, title retention agreement, mortgage, restriction, easement, right-of-way, option or adverse claim (of ownership or possession) (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any other encumbrance on title to real property, any option or other agreement

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to sell, or give a security interest in, such asset and any filing of or agreement to give any financing statement under the UCC (or equivalent statutes of any jurisdiction)) or any preferential arrangement that has the practical effect of creating a security interest and (b) in the case of Equity Interests, any purchase option, call or similar right of a third party with respect to such Equity Interests.

“Loss” means any loss, assessment, award, cause of action, claim, charge, tax, cost, expense, fine, judgment, liability, obligation or penalty, contingent or otherwise, whether liquidated or unliquidated, matured or unmatured, disputed or undisputed, contractual, legal or equitable, including loss of value, professional fees, including fees and disbursements of legal counsel on a full indemnity basis, and all costs incurred in investigating or pursuing any Claim or any proceeding relating to any Claim.

“Manufacture” and “Manufacturing” means all activities related to the production, manufacture, processing, filling, finishing, packaging, labeling, shipping, and holding of any Included Product, or any intermediate thereof, including process development, process qualification and validation, scale-up, pre-clinical, clinical and commercial manufacture and analytic development, product characterization, stability testing, quality assurance, and quality control.

“Market Capitalization” means, as of any date of determination, the product of (a) the number of issued and outstanding shares of common stock of the Company as of such date (exclusive of any shares issuable upon the exercise of options or warrants or conversion of any convertible securities), multiplied by (b) the volume weighted average price per share for the Company’s shares of common stock for the ten (10) immediately preceding Trading Days on the Current Market, subject to appropriate adjustment for any stock dividend, stock split, stock combination, reclassification or other similar transaction during the applicable calculation period.

“Marketing Authorization” means, with respect to an Included Product, the Regulatory Approval required by Applicable Law to sell such Included Product in a country or region, including, to the extent required by Applicable Law for the sale of such Included Product, all pricing approvals and government reimbursement approvals.

“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the business, operations, assets, properties, liabilities or financial condition of the Company and its Subsidiaries taken as a whole, provided, a “going concern” qualification in any financial statement shall not, in itself, be deemed a “Material Adverse Effect”, (b) a material impairment of the rights and remedies of the Investor under any Transaction Document to which it is a party or a material impairment in the perfection or priority of the Investor’s security interests in the Collateral, (c) an impairment of the ability of the Company to perform its obligations under the Transaction Documents that could reasonably be expected to have a material adverse effect on the business, assets, properties, liabilities or financial condition of the Company and its Subsidiaries taken as a whole, (d) a material adverse effect upon the legality, validity, binding effect or enforceability against the Company of any Transaction Document; (e) a material adverse effect on the Included Products in the United States (taken as a whole), the IP Rights in the United States (taken as a whole) or the ability of the Company to Develop, Commercialize or Manufacture any Included Product in the United States (taken as a whole); provided that the failure to obtain

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Regulatory Approval of any Included Product (including for any additional indications) shall not, in itself, be deemed a “Material Adverse Effect” or (f) an adverse effect on the timing, amount or duration of payments due in respect of Net Revenues in accordance with the Transaction Documents or the right of the Investor to receive payments due in respect of Net Revenues.

“Material Contract Counterparty” means a counterparty to any Material Contract.

“Material Contracts” means any Contract required to be disclosed (including amendments thereto) under regulations promulgated under the Securities Act of 1933 or Securities Exchange Act of 1934, as may be amended, solely to the extent that the absence or termination of such Contract could reasonably be expected to result in a Material Adverse Effect or in a material adverse effect on any Product Commercialization and Development with respect to ganaxolone. For the avoidance of doubt, (a) employment and management contracts shall not be Material Agreements and (b) each of (i) the CyDex License Agreement and the CyDex Supply Agreement, (ii) the Ovid License Agreement and (iii) the Purdue License Agreement shall be a Material Contract.

“Maturity Date” has the meaning ascribed to such term in the Oaktree Credit Agreement.

“Minimum Liquidity Amount” means (i) during any period while any Indebtedness under the Oaktree Credit Agreement is outstanding, $15,000,000 and (ii) at all other times, $10,000,000.

“Minimum Multiple” means the multiple of the then-current Investment Amount as set forth in Column A of the chart in Section 3.1(b).

“Minimum Return Date” means the date on which the Investor has received aggregate payments on account of the Revenue Interest equal to 100% of the Investment Amount.

“Multiemployer Plan” means any “employee benefit plan” (as defined in Section 3(3) of ERISA) that is a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding 5 plan years, has made or been obligated to make contributions.

“Net Revenues” means the Net Sales and Other Product Payments recognized as revenue by the Company and its Subsidiaries and Affiliates, in accordance with GAAP.

“Net Sales” means, with respect to each Included Product, for any period of determination, the sum of: (1) “net revenue” with respect to the sale by the Company and any of its Subsidiaries of Included Products in the United States, as reported in the Company’s (or its successor’s) periodic reports filed with the SEC on Form 10-Q and Form 10-K (as applicable); and (2) for any sales of any Included Product by the Company or any of its Subsidiaries in the United States that are not reported in the Company’s (or its successor’s) periodic reports filed with the SEC on Form 10-Q and Form 10-K (as applicable) under the preceding clause (1) as “net revenue”, then “net sales” of such Included Product shall be calculated in such case as the difference between (notwithstanding anything to the contrary and for the avoidance of doubt, no “net sales” calculated in the preceding clause (a) shall be included in “net sales” calculation pursuant to clause (2)):

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In the case of any sale or other disposal for value, such as barter or counter-trade, of an Included Product, or part thereof, other than in an arm’s length transaction exclusively for cash, Net Sales shall be calculated as above on the value of the non-cash consideration received or

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the fair market price (if higher) of such Included Product in the United States, as determined in accordance with GAAP.  Net Sales shall not include transfers or dispositions for charitable, promotional, patient assistance programs, bridging programs, pre-clinical, clinical, regulatory, or governmental research purposes; provided that, commencing with the Calendar Quarter immediately following the date that is the one year anniversary of the date of the first commercial sale of the first Included Product to obtain Regulatory Approval in the United States, and for each Calendar Quarter thereafter, any transfers or dispositions for charitable, promotional, patient assistance programs, or bridging programs (“Charitable Disposals”) for such Calendar Quarter that (when combined with all other Charitable Disposals in the trailing twelve (12) months (ended the last day of such Calendar Quarter)) exceed twenty percent (20%) of the volume per unit of the Included Products (excluding units constituting Charitable Disposals) sold for the immediate preceding twelve (12) month period shall be deemed to have been sold (solely for purposes of calculating royalties due hereunder) and included as Net Sales at an average Net Sales dollar amount per unit (excluding units constituting Charitable Disposals) of the prior twelve (12) months.  If, solely with respect to any product the Company is not planning on Developing as of the Closing Date (other than any Included Product), the Company or its Affiliate separately sells (A) a product containing ganaxolone as its sole active ingredient (other than any Included Product listed on Schedule 4.25(b)) (the “Mono Product”) and (B) products containing ganaxolone (other than any Included Product listed on Schedule 4.25(b)) and one or more other active ingredients (other than ganaxolone or a prodrug thereof) (a “Combination Product”), the Net Sales attributable to such Combination Product shall be calculated by multiplying actual Net Sales of such Combination Product by the fraction A/(A+B) where: “A” is the Company’s (or its Affiliate’s, as applicable) average Net Sales price during the period to which the Net Sales calculation applies for the Mono Product and “B” is the Company’s (or its Affiliate’s, as applicable) average Net Sales price during the period to which the Net Sales calculation applies, for products that contain as their sole active ingredients the other active ingredients in such Combination Product.

“New Drug Application” has the meaning set forth in the FDCA at 21 U.S.C. § 355(b) and its implementing regulations at 21 C.F.R. § 314.3, as amended.

“New License Agreement” means any partnership agreement, license agreement or similar agreement entered into by the Company, pursuant to which the Company or an Affiliate of the Company has granted an license or sublicense to any Third Party to Develop, have Developed, Manufacture, have Manufactured, seek Regulatory Approval for, distribute, use, have used, import, sell, offer to sell, have sold or otherwise Commercialize an Included Product (other than ordinary course contracts for marketing, promoting or selling Included Products entered into by the Company to further the Company’s business of marketing, detailing, promoting or selling Included Products, including entry into a contract sales force arrangement, in each case wherein the Company retains the right to, and does, book the full amount of Net Sales of such Included Products in the United States).

“Oaktree Credit Agreement” means that certain Credit Agreement and Guaranty by and among the Company, as the borrower, certain Subsidiaries of the Company that may be required to provide guarantees from time to time thereunder, the lenders from time to time party thereto (the “Lenders”), and Oaktree Fund Administration, LLC, as administrative agent for the lenders (“Oaktree”), dated May 11, 2021, as amended by that certain Letter Agreement by and among the Company, the Lenders, and Oaktree, dated May 17, 2021, that certain Letter Agreement

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by and among the Company, the Lenders, and Oaktree, dated May 23, 2022 and that certain Letter Agreement by and among the Company, the Lenders, and Oaktree, dated as of the date hereof (the “Oaktree Consent”), and as the same may be amended, restated, amended and restated, supplemented, increased or otherwise modified from time to time in accordance herewith.

“Oaktree Date” means the date on which the repayment of any and all Indebtedness in full, including any interest payments or other payments due, under the Oaktree Credit Agreement and the termination of all commitments under the Oaktree Credit Agreement to extend any further credit occurs.

“Oaktree Security Documents” means the “Security Documents” as defined in the Oaktree Credit Agreement.

“Obligations” means all amounts, liabilities, obligations, covenants and duties of every type and description owing by the Company Parties to Investor and any other indemnitee hereunder, arising out of, under, or in connection with this Agreement or any other Transaction Document, whether direct or indirect (regardless of whether acquired by assignment), absolute or contingent, due or to become due, whether liquidated or not, now existing or hereafter arising and however acquired, and whether or not evidenced by any instrument or for the payment of money, including, without duplication (a) the payment of the Revenue Interests (including any Underperformance Payment) up to the Hard Cap, (b) the payment of the Put/Call Payment, (c) all interest, whether or not accruing after the filing of any petition in bankruptcy or after the commencement of any insolvency, reorganization or similar proceeding, and whether or not a claim for post- filing or post-petition interest is allowed in any such proceeding, and (d) all other fees, charges and expenses (including fees, charges and disbursement of counsel), interest, costs, indemnities and reimbursement of amounts paid and other sums chargeable to such Company Party under any Transaction Document.

“ODD” means Orphan Drug Designation.

“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.

“Orange Book” means the FDA publication “Approved Drug Products with Therapeutic Equivalence Evaluations,” which identifies drug products approved by the FDA under the FDCA as well as patent and exclusivity information related to approved drug products, as may be amended from time to time.

“Orange Book Patents” means the Patents listed in the Orange Book relating to any Included Product.

“Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction), (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement, and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or

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organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.

“Orphan Drug Act” means the Orphan Drug Act amendments to the FDCA and all implementing regulations codified at 21 C.F.R. Part 316, as may be amended from time to time.

“Other Intercreditor Agreement” means an intercreditor agreement, among the Investor, the Company and the Permitted Debt Creditors under clause (b) of the definition of “Permitted Secured Facility”, agreed to by the Investor in its sole discretion, as amended, amended and restated, supplemented and otherwise modified from time to time in accordance with the terms thereof.

“Other Product Payments” means, with respect to an Included Product in the United States, without duplication, (a) any partnership distributions, royalty payments, product supply payments (to the extent in excess of fully allocated costs of such supply of Included Product), upfront payments, earn-out payments, grant payments, milestone payments or any other payments or proceeds paid or payable to the Company or its Affiliates under or in respect of any License Agreement (other than:  (i) payments for payment or reimbursement of expenses, including patent prosecution, defense, enforcement or maintenance expenses in respect of any intellectual property or IP Rights; (ii) the fair market value of payments received by Company for any debt and/or equity securities or instruments issued by Company, or payments for an acquisition of all or substantially all of its assets related to Included Products that include the assignment of this Agreement; (iii) funds received as a reimbursement of expenses for bona fide research and development of Included Products (including payments for FTEs, clinical development and manufacturing expenses); and (iv) currently unrecognized revenue from any cash payments received on or before the Closing Date under lease agreements in effect as of the Closing Date), and (b) any damages awards, settlement amounts, product payments, ongoing royalties or other amounts paid or payable to the Company or any of its Affiliates relating to or resulting from the infringement, misappropriation or other violation by a Third Party of any IP Rights relating to such Included Product, in each case (a) and (b) above, as such payments relate, in whole or in part, to the Development (for purposes of obtaining Regulatory Approvals in the United States), Manufacture (for purposes of sales of Included Product in the United States), and/or Commercialization of Included Products in geographical areas inside of the United States.

“Owned Included Product Patent Rights” means the Included Product Patent Rights which are owned by the Company or its Subsidiaries.

“Ovid License Agreement” means the Exclusive Patent License Agreement, dated March 1, 2022, between Ovid Therapeutics Inc. (“Ovid”) and the Company.

“Paragraph IV Certification” means any certification filed pursuant to 21 U.S.C. § 355(b)(2)(A)(iv), 21 U.S.C. § 355(j)(2)(A)(vii)(IV), or any comparable Applicable Law (or any amendment or successor statute thereto) relating to any Included Product in any country or regulatory jurisdiction.

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“Patent Office” means the applicable patent office, including the United States Patent and Trademark Office and any comparable foreign patent office, for any Patents.

“Patent Rights” means, collectively, with respect to a Person, all Patents issued or assigned to, and all Patent applications and registrations made by, such Person (whether established or registered or recorded in the United States or any other jurisdiction), together with any and all (i) rights and privileges arising under Applicable Law with respect to such Person’s use of any Patents, (ii) inventions and improvements described and claimed therein, (iii) reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof and amendments thereto (including any Patent Term Extensions or supplemental protection certificates), (iv) income, fees, royalties, damages, claims and payments now or hereafter due and/or payable thereunder and with respect thereto including damages and payments for past, present or future infringements thereof, and (v) rights to sue for past, present or future infringements thereof, in each such case, related to the Included Products and which are owned or controlled by, issued or licensed to, licensed by, or hereafter acquired or licensed by, the Company or any Affiliate.

“Patent Term Extension” means patent term extension applied for, or granted by the U.S. Patent and Trademark Office, pursuant to 35 U.S.C. § 156 or any similar Applicable Law in other jurisdictions.

“Patents” means all letters patent and patent applications in the United States (and all letters patent that issue therefrom or from an application claiming priority therefrom) and all patent term extensions, reissues, reexaminations, extensions, renewals, divisions and continuations (including continuations-in-part and continuing prosecution applications) thereof, for the full term thereof, together with the right to claim the priority thereto and the right to sue for past infringement of any of the foregoing.

“Payment Term” means the time period commencing on the Closing Date and expiring on the date upon which the Investor has received in full (i) cash payments in respect of the Revenue Interests totaling, in the aggregate, the Hard Cap and (ii) any other Obligations payable by the Company under this Agreement and the other Transaction Documents.

“PBGC” means the United States Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.

“Pension Plan” means any “employee pension benefit plan” (as defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is maintained or is contributed to by the Company and any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to minimum funding standards under Section 412 of the Internal Revenue Code.

“Permits” means licenses, Governmental Licenses, certificates, accreditations, Regulatory Approvals, other authorizations, registrations, permits, consents, clearances and approvals required in connection with the conduct of the Company’s or any Subsidiary’s Business or to comply with any Applicable Laws, and those issued by state governments for the conduct of the Company’s or any Subsidiary’s Business.

“Permitted Acquisition” means any Acquisition by the Company or any of its Subsidiaries, whether by purchase, merger or otherwise; provided that:

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“Permitted Bond Hedge Transaction” means any call or capped call option (or substantively equivalent derivative transaction) relating to the Company’s common stock (or other securities or property following a merger event, reclassification or other similar fundamental change of the Company, or adjustment with respect to the common stock of the Company) that is (A) purchased or otherwise entered into by the Company in connection with the issuance of any Permitted Convertible Notes, (B) settled in common stock of the Company (or such other securities or property), cash or a combination thereof (such amount of cash determined by reference to the

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price of the Company’s common stock or such other securities or property), and cash in lieu of fractional shares of common stock of the Company and (C) on terms and conditions customary for bond hedge transactions in respect of transactions related to public market convertible indebtedness (pursuant to a public offering or an offering under Rule 144A or Regulation S of the Securities Act) as reasonably determined by the Company; provided, that, the purchase price for such Permitted Bond Hedge Transaction, less the proceeds received by the Company from the sale of any related Permitted Warrant Transaction (or in the case of capped calls, where such proceeds are not received but are reflected in a reduction of the premium), does not result in the incurrence of additional Indebtedness by the Company (other than Indebtedness from the issuance of Permitted Convertible Notes in connection with such Permitted Bond Hedge Transaction).

“Permitted Cash Equivalent Investments” means (i) marketable direct obligations issued or unconditionally guaranteed by the United States or any member states of the European Union or any agency or any state thereof having maturities of not more than two (2) years from the date of acquisition, (ii) commercial paper maturing no more than three hundred sixty-five (365) days after the date of acquisition thereof and having the highest rating from either Standard & Poor’s Ratings Group or Moody’s Investors Service, Inc., (iii) certificates of deposit maturing no more than two (2) years after issue that are issued by any bank organized under the Laws of the United States, or any state thereof, or the District of Columbia, or any U.S. branch of a foreign bank having, at the date of acquisition thereof, combined capital and surplus of not less than $500,000,000, (iv) any money market or similar funds that exclusively hold any of the foregoing, and (v) other short term liquid investments approved in writing by the Investor in its sole discretion.

“Permitted Convertible Notes” means unsecured Indebtedness of the Company having a feature which entitles the holder thereof to convert or exchange all or a portion of such Indebtedness into Equity Interests of the Company; provided that: (i) such Indebtedness shall not be guaranteed by any Subsidiary of the Company that is a Guarantor or a Pledged Subsidiary, (ii) such Indebtedness shall be subject to the final paragraph of Section 3.1(b) hereof, (iii) Permitted Convertible Notes shall not include any financial maintenance covenants and shall only include covenants, defaults and conversion rights that are customary for public market convertible indebtedness (pursuant to a public offering or an offering under Rule 144A or Regulation S of the Securities Act) as of the date of issuance, as determined by the Company in its good faith judgment, (iv) no Default or Event of Default shall have occurred and be continuing at the time of incurrence of such Indebtedness or would result therefrom, (v) such Indebtedness shall not have an all-in-yield (excluding any arrangement, amendment, syndication, commitment, underwriting, structuring, ticking or other similar fees payable in connection therewith that are not generally shared with all of the holders of such Indebtedness) greater than the applicable amount set forth on Schedule 4 as determined in good faith by the Investor (with any original issue discount equated to interest based on the convertible debt maturity date and excluding any additional or special interest that may become payable from time to time) and (vi) the Company shall have delivered to the Investor a certificate of a Responsible Officer of the Company certifying as to the foregoing clauses (i) through (iv).

“Permitted Debt” means any of the following Indebtedness of the Company and its Subsidiaries (which, for purposes of determining whether such Indebtedness exceeds any

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maximum amount provided in the applicable clause below, shall be calculated on a consolidated basis with respect to the Company and its Subsidiaries):

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“Permitted Debt Creditors” means the lenders or noteholders, and any administrative agent, trustee, collateral agent, security agent, representative or similar agent under any Permitted Debt Facility.

“Permitted Debt Facility” means the Permitted Secured Facility and the Permitted Unsecured Facility.

“Permitted Debt Facility Documents” means the documents relating to a Permitted Debt Facility.

“Permitted Hedging Agreement” means a Hedging Agreement entered into by any Company Party in the ordinary course of business for the purpose of hedging currency risks or interest rate risks (and not for speculative purposes) and (x) with respect to hedging currency risks, in an aggregate notional amount for all such Hedging Agreements not in excess of $5,000,000 (or the Equivalent Amount in other currencies) and (y) with respect to hedging interest rate risks, in an aggregate notional amount for all such Hedging Agreements not more than 100% of the aggregate principal amount of loans outstanding at such time under any Permitted Secured Facility.

“Permitted Licensee” means a Third Party counterparty to a Permitted License.

“Permitted Licenses” means, collectively,

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“Permitted Liens” means:

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It is understood and agreed that, notwithstanding anything to the contrary set forth in this definition, in no event shall any “Permitted Lien” include any license of any Included Product or any transfer (other than a Lien) of any IP Rights, in each case, other than Permitted Licenses.

“Permitted Refinancing” means, with respect to any Indebtedness permitted to be refinanced, extended, renewed or replaced hereunder, any refinancings, extensions, renewals and replacements of such Indebtedness; provided that such refinancing, extension, renewal or replacement shall not (i) increase the outstanding principal amount of the Indebtedness being refinanced, extended, renewed or replaced, except by an amount equal to accrued interest and a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred in connection therewith, (ii) contain terms relating to outstanding principal amount, amortization, maturity, collateral security (if any) or subordination (if any), or other material terms that, taken as a whole, are less favorable in any material respect to the Company Parties and their respective Subsidiaries or the Investor than the terms of any agreement or instrument governing such existing Indebtedness, (iii) have an applicable interest rate which does not exceed the greater of (A) the rate of interest of the Indebtedness being replaced and (B) the then applicable market interest rate, (iv) contain any new requirement to grant any Lien or to give any guarantee that was not an existing requirement of such Indebtedness and (v) after giving effect to such refinancing, extension, renewal or replacement, no Event of Default shall have occurred or could reasonably be expected to occur as a result thereof.

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“Permitted Secured Facility” means (a) subject to entry into the Intercreditor Agreement, the secured credit facility provided under the Oaktree Credit Agreement, including the funding of any commitments to extend credit thereunder after the Closing Date that are in existence on the Closing Date and (b) subject to entry into an Other Intercreditor Agreement, other secured Indebtedness.

“Permitted Unsecured Facility” means an unsecured credit facility provided under the Permitted Convertible Notes.

“Permitted Warrant Transaction” means any call option, warrant or right to purchase (or substantively equivalent derivative transaction) relating to the Company’s common stock (or other securities or property following a merger event, reclassification or other change of the common stock of the Company) sold by the Company and with recourse to the Company only, substantially concurrently with any purchase by the Company of a Permitted Bond Hedge Transaction and settled in common stock of the Company, cash or a combination thereof (such amount of cash determined by reference to the price of the Company’s common stock or such other securities or property), and cash in lieu of fractional shares of common stock of the Company, with a strike price higher than the strike price of the Permitted Bond Hedge Transaction.

“Person” means any natural person, firm, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, Governmental Authority or any other legal entity, including public bodies, whether acting in an individual, fiduciary or other capacity.

“Personal Information” shall have the meaning set forth in Section 4.24(b).

“Plan” means any “employee benefit plan” within the meaning of Section 3(3) of ERISA (including a Pension Plan) that is maintained for employees of the Company or, in the case of any Pension Plan, any ERISA Affiliate or to which the Company or, in the case of any Pension Plan, any ERISA Affiliate is required to contribute on behalf of any of its employees.

“Pledged Subsidiaries” shall have the meaning set forth in Section 6.1(a).

“Principal Market” means any of the New York Stock Exchange, the NYSE MKT, the NASDAQ Global Select Market, the NASDAQ Global Market or the NASDAQ Capital Market.

“Product” means any product or service developed, imported, manufactured, marketed, offered for sale, promoted, sold, tested or otherwise distributed by the Company or any Subsidiary, including, without limitation, the Included Products.

“Product Assets” means (a) all IP Rights, (b) each Material Contract related to any Included Product, (c) all Product Registrations, Regulatory Approvals, Marketing Authorizations, Regulatory Exclusivities and Regulatory Documentation related to any Included Product, (d) all inventory of Included Products and any raw materials and work-in-process relating thereto, (e) all accounts receivables and payment intangibles arising out of sales of any Included Product or licenses of any IP Rights, (f) all other assets primarily related to the Development, Manufacture or Commercialization of any Included Product and that are owned by, licensed to, or otherwise

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Controlled by the Company or any Subsidiary, (g) any other assets that are owned by, licensed to, or otherwise Controlled by the Company or any Subsidiary that are reasonably necessary for the Development, Commercialization or Manufacture of any Included Products, the absence of which would reasonably be expected to cause a Material Adverse Effect and (h) all proceeds of any of the foregoing.

“Product Registrations” means, with respect to Included Products anywhere in the world, (a) any approvals, clearances, registrations, licenses, biologics license applications, listings, permits, INDs, New Drug Applications, ODDs, breakthrough therapy designations, fast track designations, clinical trial authorizations or Marketing Authorizations, including FDA drug listings, Marketing Authorization approvals and other national or regional marketing authorizations or permits, together with any supplements or amendments thereto, whether pending or issued, to the Company or any of its Subsidiaries by the relevant Governmental Authority related to the Development, Manufacture, or Commercialization of such Included Products over which such Governmental Authority has authority, (b) any rights that the Company or an Affiliate of the Company has in any Regulatory Approval under any agreement pursuant to which any such Regulatory Approval is held in the name of a third party and (c) pricing and reimbursement approval (if applicable or available) and all national drug code numbers (if any) assigned to the Included Products.

“Prohibited Assignee” means (i) any competitor of the Company primarily operating in the biopharmaceutical industry, at least 50.0% of the revenues of which are derived from the sale of biopharmaceutical products, and (ii) any of such competitor’s Affiliates (other than any Person that is a bona fide debt fund primarily engaged in the making, purchasing, holding or other investing in commercial loans, notes, bonds or similar extensions of credit or securities in the ordinary course of business) that is either (x) identified by name in writing by the Company to the Investor from time to time or (y) clearly identifiable on the basis of such Affiliate’s name.

“Proprietary Databases” means any material non-public proprietary database or information repository that is owned by or licensed to the Company or any Subsidiary or with respect to which the Company or any Subsidiary is authorized or granted rights under or to.

“Proprietary Software” means any proprietary software (other than any software that is generally commercially available, off-the-shelf and/or open source) including, without limitation, the object code and source code forms of such software and all associated documentation, which is owned by or licensed to the Company or any Subsidiary or with respect to which the Company or any Subsidiary is authorized or granted rights under or to.

“Purdue License Agreement” means the Amended and Restated Agreement, effective May 23, 2008, between Purdue Neuroscience Company (“Purdue”) and the Company.

“Purpose” has the meaning set forth in Section 9.1.

“Put Option” has the meaning set forth in Section 3.1(c).

“Put Option Event” means the occurrence of any one of the following events:

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“Put/Call Payment” means (i) on or before the third anniversary of the Closing Date if the Put Option or Call Option is exercised, one hundred sixty percent (160%) of the Investment Amount, less the aggregate of all of the payments of the Company in respect of the Revenue Interests (including any Underperformance Payment, but excluding any interest or other payments paid or payable by the Company under this Agreement or any of the Transaction Documents) made to the Investor prior to such date; (ii) after the third anniversary but on or prior to the fourth anniversary of the Closing Date if the Put Option or Call Option is exercised, one hundred eighty percent (180%) of the Investment Amount, less the aggregate of all of the payments of the Company in respect of the Revenue Interests (including any Underperformance Payment, but excluding any interest or other payments paid or payable by the Company under this Agreement or any of the Transaction Documents) made to the Investor prior to such date; and (iii) after the fourth anniversary of the Closing Date if the Put Option or Call Option is exercised, one hundred ninety percent (190%) of the Investment Amount, less the aggregate of all of the payments of the Company in respect of the Revenue Interests (including any Underperformance Payment, but excluding any interest or other payments paid or payable by the Company under this Agreement or any of the Transaction Documents) made to the Investor prior to such date.  For the avoidance of doubt, the Put/Call Payment shall be calculated as of the date of the payment of the Put/Call Payment.

“Quarterly Net Revenues” means, with respect to any Calendar Quarter, the aggregate amount of Net Revenues in the United States for that Calendar Quarter.

“Quarterly Payment Date” means each February 1, May 1, August 1 and November 1 following the end of the first Calendar Quarter after the Closing Date (provided if any such date is not a Business Day, the Quarterly Payment Date shall be the next succeeding Business Day).

“Recipient” has the meaning set forth in Section 9.1.

“Reference Date” means the reference date set forth in the Column B of the chart in Section 3.1(b).

“Regulatory Agency” means a Governmental Authority with responsibility for the approval of the marketing and sale of pharmaceuticals or other regulation of pharmaceuticals in any jurisdiction.

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“Regulatory Approvals” means, collectively, all regulatory approvals, registrations, certificates, authorizations, permits and supplements thereto, as well as associated materials (including the product dossier) pursuant to which the Included Product may be marketed, sold and distributed in a jurisdiction, issued by the appropriate Regulatory Agency, including approved Drug Applications.

“Regulatory Documentation” means all (a) applications (including all INDs, Drug Applications and other major regulatory flings), registrations, licenses, authorizations, and approvals, (b) correspondence and reports submitted to or received from Governmental Authorities (including minutes and official contact reports relating to any communications with any Governmental Authority) and all supporting documents with respect thereto, including all advertising and promotion documents, adverse event files, and complaint files, and (c) clinical data and data contained or relied upon in any of the foregoing, in each case ((a), (b), and (c)) relating to an Included Product.

“Regulatory Exclusivity” means, with respect to an Included Product, any additional market protection, other than Patent protection or Patent-related exclusivity, granted by a Governmental Entity which confers an exclusive commercialization period either (a) during which the Company or any of its Affiliates, licensees or sublicensees  has the exclusive right to Commercialize such Included Product (or products similar to such Included Product) in a given territory or for a given use, or (b) that prevents a third party from referencing the Regulatory Documentation for or relying on Regulatory Approval  of such Included Product for the benefit of any Product Registration for a Generic Product without the prior written consent of the holder of the Product Registration for such Included Product, such that in each case ((a) and (b)), any unauthorized third party is prevented from marketing or selling a Generic Product of such Included Product during such period, including but not limited new chemical entity exclusivity, orphan drug exclusivity, data exclusivity, pediatric exclusivity and the like.

“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the thirty-day notice period has been waived.

“Responsible Officer” means the chief executive officer, president, chief financial officer, chief operating officer, and solely for purposes of the delivery of certificates pursuant to this Agreement, the secretary or any assistant secretary of the Company.  Any document delivered hereunder that is signed by a Responsible Officer of the Company shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of the Company and such Responsible Officer shall be conclusively presumed to have acted on behalf of the Company.

“Restricted Payment” means any dividend or other distribution (whether in cash, Equity Interests or other property) with respect to any Equity Interests of any Company Party or any of its Subsidiaries, or any payment (whether in cash, Equity Interests or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interests of any Company Party or any of its Subsidiaries, any option, warrant or other right to acquire any such Equity Interests of any Company Party or any of its Subsidiaries; provided, that the issuance of, entry into (including any payments of premiums in connection therewith), performance of obligations under (including any

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payments of interest), and conversion, exercise, repurchase, redemption, settlement or early termination or cancellation of (whether in whole or in part and including by netting or set-off) (in each case, whether in cash, common stock of the Company or, following a merger event or other change of the common stock of Company, other securities or property), or the satisfaction of any condition that would permit or require any of the foregoing, any Permitted Convertible Notes, any Permitted Bond Hedge Transaction and any Permitted Warrant Transaction, including any payment or delivery in connection with a Permitted Warrant Transaction by (i) delivery of shares of the Company’s common stock upon net share settlement thereof and any related purchase of such common stock required to be made in connection with such delivery, (ii) set-off or payment of an early termination payment or similar payment thereunder, in each case, in the Company’s common stock upon any early termination thereof or (iii) in the event of cash settlement upon settlement, any payment of a cash settlement or equivalent amount, in each case, shall not constitute a Restricted Payment by the Company or any Subsidiary.

“Revenue Interest” means all of the Company’s rights, title and interest in and to, free and clear of any and all Liens (except for any Lien contemplated under clauses (c), (d), (e), (f), (k), (l), (y) and (cc) of the definition of “Permitted Lien”), that portion of the Annual Net Revenues of the Company in an amount equal to the Included Product Payment Amount for each Calendar Quarter during the Payment Term.

“Revenue Interest Financing” means any sale of, or financing or similar transaction based exclusively on, revenues or net sales derived from, and/or other proceeds arising out of or relating to (a) the Company’s revenues or net sales of any Product (other than an Included Product), or (b) the Company’s net sales of any Included Product but only if and to the extent such net sales of such Included Product are solely outside of the United States, provided that, in each case of clauses (a) and (b) above, such transaction does not grant any Lien on any Collateral (collectively, the “Revenue Strip Proceeds”).

“Safety Notices” means any recalls, field notifications, market withdrawals, warnings, “dear health care provider” letters, investigator notices, safety alerts,  or any other notices of action issued or instigated by the Company, any Subsidiary or any Governmental Authority relating to an alleged lack of safety or regulatory compliance of the Included Products.

“Sale and Leaseback Transaction” means, with respect to any Party or any Subsidiary, any arrangement, directly or indirectly, with any Person whereby the Party or such Subsidiary shall sell or transfer any property used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold or transferred.

“Sanction(s)” means any sanction administered or enforced by the United States government (including, without limitation, OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury (“HMT”) or other relevant sanctions authority.

“Sanctioned Person” means (a) any Person listed in any Sanctions-related list of designated persons maintained by the United States government (including, without limitation, OFAC), the United Nations Security Council, the European Union, HMT or other relevant

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sanctions authority, and (b) any Person 50% or greater owned or controlled by any such Person or Persons.

“SEC” means the Securities and Exchange Commission or any successor agency or authority thereto.

“SEC Filings” means all documents and reports filed or furnished by Company with the U.S. Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended.

“Securities Account” means a “securities account” (as defined in Article 8 of the UCC) or other account to or for the credit or account of any Party to which a financial asset is or may be credited in accordance with an agreement under which the Person maintaining the account undertakes to treat the Person for whom the account is maintained as entitled to exercise the rights that comprise the financial asset.

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

“Security Agreement” means the security agreement, dated as of the Closing Date, in the form of Exhibit D, executed in favor of the Investor by the Company and each of the Guarantors, as amended or modified from time to time in accordance with the terms hereof.

“Security Documents” means, collectively, the Security Agreement, each Short-Form IP Security Agreement, and each other security document, control agreement or financing statement required or recommended to perfect Liens in favor of the Investor for purposes of securing the Obligations.

“Set-off” means any set-off, off-set, reduction or similar deduction.

“Short-Form IP Security Agreements” means short-form copyright, patent or trademark (as the case may be) security agreements, dated as of the Closing Date and substantially in the form of Exhibits C, D and E to the Security Agreement, entered into by one or more Company Parties in favor of the Investor, each in form and substance reasonably satisfactory to the Investor (and as amended, modified or replaced from time to time).

“Subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity (i) of which securities or other ownership interests representing more than fifty percent (50%) of the equity or more than fifty percent (50%) of the ordinary voting power or, in the case of a partnership, more than fifty percent (50%) of the general partnership interests are, as of such date, owned, controlled or held, directly or indirectly, or (ii) that is, as of such date, otherwise Controlled, by the parent or one or more direct or indirect subsidiaries of the parent or by the parent and one or more direct or indirect subsidiaries of the parent. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries

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of the Company. As of the Closing Date, the Subsidiaries of the Company are set forth on Schedule 4.21.

“Supplemental Application” means an application submitted to an approved New Drug Application or Abbreviated New Drug Application that proposes to make one or more changes to the authorized drug product.

“Tax” or “Taxes” means any U.S. federal, state, local or non-U.S. tax, levy, impost, duty, assessment or withholding or other similar fee, deduction or charge, including all excise, sales, use, value added, transfer, stamp, documentary, filing, recordation and other fees imposed by any taxing authority (and interest, fines, penalties and additions related thereto).

“Third Party” means any Person other than (a) the Company, (b)  the Investor or (c) an Affiliate of either the Company or the Investor (as applicable).

“Third Party Claim” means any claim, action, suit or proceeding by a Third Party, excluding any lender, officer, directors, employee or agent or other representative of a Party, including any investigation by any Governmental Authority.

“Trade Secrets” means any data or information that is not commonly known by or available to the public, and which (a) derives economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other Persons who can obtain economic value from its disclosure or use, (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy, and (c) which are owned by or licensed to the Company or any Subsidiary or with respect to which the Company or any Subsidiary is authorized or granted rights under or to.

“Trademark License” means any agreement, written or oral, providing for the grant of any right to use any Trademark.

“Trademarks” means all statutory and common-law trademarks, trade names, corporate names, company names, business names, fictitious business names, trade styles, service marks, logos and other source or business identifiers, and the goodwill associated therewith, now existing or hereafter adopted or acquired, all registrations and recordings thereof, and all applications to register in connection therewith, under the Laws of the United States, any state thereof or any other country or any political subdivision thereof, or otherwise, for the full term and all renewals thereof, which are owned by or licensed to the Company or any Subsidiary or with respect to which the Company or any Subsidiary is authorized or granted rights under or to.

“Trading Day” means any day on which the shares of common stock of the Company are traded for at least six (6) hours on the Current Market.

“Transaction Documents” means this Agreement, the Intercreditor Agreement, the Security Documents, any Intercompany Subordination Agreement and any Joinder Agreement.

“Transaction Expenses” has the meaning set forth in Section 8.2(g).

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“Treasury Management Arrangement” means any agreement or other arrangement governing the provision of treasury or cash management services, including netting services, overdraft, credit or debit card, funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting, direct debit, cash concentration, trade finance services and other cash management services.

“U.S.” or “United States” means the United States of America, its 50 states, each territory and possession thereof and the District of Columbia.

“UCC” means the Uniform Commercial Code as in effect from time to time in New York; provided, that, if, with respect to any financing statement or by reason of any provisions of Applicable Law, the perfection or the effect of perfection or non-perfection of any security interest or any portion thereof granted hereunder or pursuant to the Security Agreement is governed by the Uniform Commercial Code as in effect in a jurisdiction of the United States other than New York, then “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions of this Agreement and any financing statement relating to such perfection or effect of perfection or non-perfection.

“Underperformance Payments” has the meaning set forth in Section 3.1(b).

“Valid Claim” shall mean:  (a) any claim of an issued and unexpired Patent, that shall not have been withdrawn, lapsed, abandoned, revoked, canceled or disclaimed, or held invalid or unenforceable by a court, Governmental Authority, national or regional patent office or other appropriate body that has competent jurisdiction in a decision being final and unappealable or unappealed within the time allowed for appeal; and (b) a claim of a pending Patent application that is filed and being prosecuted in good faith and that has not been finally abandoned or finally rejected and which has been pending for no more than seven (7) years from its filing date.

“Website Agreements” means all agreements between the Company and/or any Subsidiary and any other Person pursuant to which such Person provides any services relating to the hosting, design, operation, management or maintenance of any Website, including without limitation, all agreements with any Person providing website hosting, database management or maintenance or disaster recovery services to the Company and/or any Subsidiary and all agreements with any domain name registrar, as all such agreements may be amended, supplemented or otherwise modified from time to time.

“Websites” means all websites that the Company or any Subsidiary shall operate, manage or control through a Domain Name, whether on an exclusive basis or a nonexclusive basis, including, without limitation, all content, elements, data, information, materials, hypertext markup language (HTML), software and code, works of authorship, textual works, visual works, aural works, audiovisual works and functionality embodied in, published or available through each such website and all IP Rights in each of the foregoing.

“Work” means any work or subject matter that is subject to protection pursuant to Title 17 of the United States Code.

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“ZTALMY” means the product marketed and sold by the Company or its Affiliates under New Drug Application # 215904, approved for marketing in the United States on June 1, 2022.

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Notwithstanding the foregoing, if the Company incurs any Permitted Convertible Notes with a scheduled maturity date or is required pursuant to any mandatory repurchase or redemption provision thereof (other than in connection with a customary change of control or “fundamental change” provision) to repurchase or redeem such Permitted Convertible Notes, in each case, on or prior to December 31, 2027 (the “Convertible Notes Redemption Date”), and the Investor has not received 1.00x of the Investment Amount at least 30 calendar days prior to the Convertible Notes Redemption Date (the “Accelerated Underperformance Payment Date”), the Company shall, so long as any such Permitted Convertible Notes are then outstanding, make a cash payment to the Investor on the Accelerated Underperformance Payment Date sufficient to gross the Investor up to 1.00x of the Investment Amount.

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Except as set forth in the disclosure schedules attached hereto (the “Disclosure Schedules”), the Company hereby represents and warrants to the Investor as of the Closing Date as follows:

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