definiens: means any change, circumstance, event or effect ( each an ) that ( i ) is materially adverse to the business, financial condition or results of operationsof the Company and the Company ’s Subsidiaries, taken as a whole, including without limitation, failure of either of(1 ) the p38 kinase inhibitor program with Bristol - Myers Squibb Company in rheumatoid arthritis or ( 2 ) the CXCR2antagonist program with Schering Corporation and Schering Plough Ltd. in chronic obstructive pulmonary disease tomeet its primary Phase 2 clinical endpoints ( outcome measures ), or a clinical hold imposed by the FDA or othercomparable Governmental Entity with respect to either of such programs as evidenced by general public disclosure orformal written notification to the Company of any such Effect ( either ( 1 ) or ( 2 ), the ) ; provided thatParent may only exercise its right to terminate this Agreement pursuant to a Company Material Adverse 57Table of ContentsEffect relating to either Program Trigger if it provided written notice to the Company of such termination within ten(10 ) business days of notification by the Company to Parent, pursuant to Section 8.2, of the occurrence of a ProgramTrigger, and absent such notice of termination, Parent shall be deemed to waive any right to terminate this Agreement andshall be deemed to waive the nonsatisfaction of any condition to closing under Article VI of this Agreement, in eachcase, relating to or arising from such Program Trigger ; or ( ii ) materially impedes the consummation of the transactionscontemplated by this Agreement in accordance with the terms hereof and all applicable Legal Requirements ; provided, however, that none of the following shall be deemed in themselves, either alone or in combination, to constitute, and thatnone of the following shall be taken into account in determining whether there has been or will be, a Company MaterialAdverse Effect : ( A ) any adverse Effect ( 1 ) to the extent attributable in whole or in part to the announcement or pendencyof Merger 1 ; ( B ) any adverse Effect attributable to conditions generally affecting the biotechnology or pharmaceuticalindustries or the U.S. or international economy or the U.S. or international financial markets which do not materiallydisproportionately affect the Company or the applicable Company Subsidiaries ; ( C ) any adverse Effect arising from orrelating to compliance with the terms of this Agreement ; ( D ) changes in GAAP or regulatory accounting principles afterthe date hereof ; ( E ) changes in law after the date hereof ; ( F ) earthquakes, fires, floods, hurricanes, tornadoes or similarcatastrophes, or acts of war, sabotage, terrorism, military action or any escalation or worsening thereof after the datehereof, and whether or not pursuant to the declaration of national emergency or war ; ( G ) any adverse data resulting frompre - clinical activities ; ( H ) the failure of the Company to meet analysts ’ projections, in and of itself ( it being understoodthat any Effect that may have caused or contributed to any such failure may be deemed to constitute, in and of itself, aCompany Material Adverse Effect and may be taken into consideration when determining whether a Company MaterialAdverse Effect has occurred ) ; ( I ) any action taken by the Company with Parent ’s written consent or the taking of anyaction expressly required by this Agreement ; ( J ) a decline in the Company ’s stock price, in and of itself ( it beingunderstood that any Effect that may have caused or contributed to any such decline may be deemed to constitute, in andof itself, a Company Material Adverse Effect and may be taken into consideration when determining whether a CompanyMaterial Adverse Effect has occurred ) ; or ( K ) the Effects upon the Company ’s business, financial condition and/or resultsof operations as contemplated in the Company ’s forecast plan delivered to Parent by the Company prior to the date ofthis Agreement ( provided that for the purposes of this clause ( K ) means the forecasts related to thebusiness, financial condition and results of operations of the Company which are contained in the forecast plan and anyvariances from such forecasts which are not material to the Company )