“
Company Material Adverse Effect” means an event, change, occurrence or development that has had, or would reasonably be expected to have, a material adverse effect on the business, operations or financial condition of
the Company and its
Subsidiaries, taken as a whole, but shall not include events, changes, occurrences or
developments relating to or resulting from (a) any change in the market price or trading volume of
the Company’s Common Stock (
provided,
however, that the underlying causes thereof, to the extent not otherwise excluded by this definition, may be deemed to contribute to a Company Material Adverse Effect); (b) the execution, announcement, consummation, existence or pendency of this Agreement or the terms hereof (including the identity of Parent or Merger Sub) or the announcement, pendency or consummation of the transactions contemplated by this Agreement, including the impact thereof on the relationships, contractual or otherwise, of
the Company with employees, labor unions, works councils, financing sources, customers, franchisees, suppliers, partners, Governmental Entities or other business
relationships (
provided, that this clause (b) shall not apply with respect to any representation or warranty that is expressly intended to address the consequences of the execution, delivery or performance of this Agreement or the consummation of the transactions contemplated hereby (including
Section 3.4 or with respect to the condition to Closing contained in
Section 6.3(a), to the extent it relates to such representations and warranties); (c) the general conditions or trends in the industries in which
the Company and its
Subsidiaries operate or in the economy generally or other general business, financial or market conditions, including competition in geographic, product or service areas; (d) domestic, foreign or global political conditions, economic, regulatory, financial
or capital markets conditions (including interest rates, exchange rates, tariffs, trade wars and credit markets); (e) any act of civil unrest, civil disobedience, protests, public demonstrations, insurrection, terrorism, war, cyberterrorism, military activity, sabotage, national or international calamity or any other similar event, including an outbreak or escalation of hostilities involving the United States or any other Governmental Entity or the declaration by the United States or any other Governmental Entity of a national emergency or war, or any worsening of any such conditions threatened or existing on the date of this Agreement; (f) any natural or manmade disasters, epidemics, pandemics or disease outbreaks (including COVID-19) or any acts of God; (g) compliance by
the Company and its
Subsidiaries
with COVID-19 Measures or any Cybersecurity Measures; (h) the failure of
the Company to meet internal or analysts’ expectations or projections, forecasts, guidance, estimates or budgets (
provided,
however, that the underlying causes thereof, to the extent not otherwise excluded by this definition, may be deemed to contribute to a Company Material Adverse Effect;
provided,
further, that this clause (h) shall not be construed as implying that
the Company is making any representation or warranty hereunder with respect to any internal or analysts’ expectations or projections, forecasts, guidance, estimates or budgets); (i) any Action or proceeding based on allegations of a breach of fiduciary duty or violation of applicable Law relating to or resulting from this Agreement or the transactions
contemplated by this Agreement; (j) any action taken by
the Company at the written direction of Parent or any action required to be taken by Parent, Merger Sub or
the Company pursuant to the terms of this Agreement, or the failure of
the Company to take any action that
the Company is prohibited by the terms of this Agreement from taking, or which
the Company did not take on account of any unreasonably withheld consent from Parent (
provided, that this clause (j) shall not apply with respect to any representation or warranty that is expressly intended to
address the consequences of the execution, delivery or performance of this Agreement or the consummation of the transactions contemplated hereby (including
Section 3.4 or with respect to the condition to Closing contained in
Section 6.3(a), to the extent it relates to such representations and warranties); (k) any breach by Parent or Merger Sub of this Agreement; (l) any matter expressly set forth on Section 3.6(a) of
the Company Disclosure Letter, (m) any change in, or any compliance with, any applicable Law or GAAP or any other publicly available applicable accounting principles or standards (or publicly available interpretations of any applicable Law or GAAP or any other publicly available applicable accounting principles or standards) after the date of this Agreement;
provided,
however, that, to the extent such events, changes, occurrence or developments
referred to in clauses (c), (d), (e), (f), (g) or (m) has had or would reasonably be expected to have, individually or in the aggregate, a disproportionate adverse effect on the business, financial condition or results of operations of
the Company and its
Subsidiaries, taken as a whole, relative to others in the industry or industries in which
the Company and its
Subsidiaries operate, then the incremental disproportionate impact shall be taken into account when determining whether a
“Company Material Adverse Effect” has occurred or may, would or could occur.