understood, in each case, that this clause (C) shall not apply to any representation or warranty in Section 3.1 to the extent the purpose of such representation or warranty is to address consequences resulting from the execution, delivery or performance of this Agreement or the consummation of the Merger or any of the other transactions contemplated hereby);
(D) Changes
arising out of geopolitical conditions, acts of terrorism or sabotage, cyberterrorism (including by means of cyber-attack by or sponsored by a Governmental Entity), civil disturbances or unrest, war (whether or not declared), the commencement, continuation or escalation of a war or military action, acts of hostility, weather conditions or other acts of God (including storms, earthquakes, volcanic activity, hurricanes, tsunamis, tornadoes, mudslides, wild fires, floods or other natural disasters) or force majeure events, including any material worsening of such conditions threatened or existing on the date of this Agreement;
(E) Changes arising due to COVID-19 or any Law, directive, pronouncement or guideline issued by a Governmental Entity that relate to, or arise out of, an epidemic, pandemic or disease
outbreak (including the COVID-19 pandemic), or any change in such Law, directive, pronouncement or guideline or interpretation thereof, in each case, to the extent that they have the force of law or are binding on or affecting the Person to which they purport to apply, following the date of this Agreement or
the Company or its
Subsidiaries’ compliance therewith;
(F) any adoption, implementation, promulgation, repeal, modification, amendment, reinterpretation or change in applicable Laws after the date of this Agreement, including, to the extent relevant to the business of
the
Company or its
Subsidiaries, in any legal or regulatory requirement or condition or the regulatory enforcement environment;
(G) Changes in GAAP or any foreign equivalents thereof after the date hereof or the interpretations thereof;
(H) any (1) action taken by Parent or its Affiliates or (2) action or omission pursuant to the written request, or with the written consent of, Parent;
(I) any
failure by
the Company to meet any internal or public projections, forecasts or estimates of revenues, earnings or other financial performance or results of operations for any period,
provided that the exception in this clause shall not prevent or otherwise affect a determination that any Change underlying such failure has resulted in, or contributed to, a Company Material Adverse Change; and
(J) a decline in the price or trading volume of
the Company’s common stock,
provided that the exception in this clause shall not prevent or otherwise affect a determination that any Change underlying such decline has resulted in,
or contributed to, a Company Material Adverse Change.
As used in this Agreement, “
Affiliate” means with respect to any Person, any other Person which, directly or indirectly, controls, or is controlled by, or is under common control with, such Person. As used in this definition, “
control” (including, with its correlative meanings, “
controlled by” and “
under common control with”) shall mean the possession, directly or indirectly, of the power to direct or cause the direction of management or policies of a Person, whether through the ownership of securities or partnership or other ownership interests, by
contract
or otherwise. As used in this Agreement, “
COVID-19” means SARS-CoV-2 or COVID-19, and any evolutions thereof. As used in this Agreement, “
COVID-19 Measures” means any quarantine, shelter in place, stay at home, workforce reduction, social distancing, shut down, closure, sequester or any other Law, Governmental Order, action, claim, suit, proceeding or directive by any Governmental Entity, in each case, to the extent that they have the force of law or are binding on or affecting the Person to which they purport to apply, in connection with or in response to COVID-19, including, but not limited to, the Families First Coronavirus Response Act, Pub. L. No. 116-127 (116th Cong.), the Coronavirus Aid, Relief, and Economic Security Act (Pub. L. No. 116-136), Consolidated Appropriations Act, 2021(Pub. L. 116-260), the Presidential Memorandum on
“Deferring Payroll Tax Obligations in Light of the Ongoing COVID-19 Disaster” dated
August 8, 2020 (including IRS Notice 2020-65 and IRS Notice 2021-11). As used in this Agreement, “
Governmental Order” means any order, judgment, injunction, ruling, decree, writ, stipulation, determination, settlement or award, in each case, entered by or with any Governmental Entity. As used in this Agreement, “
Pandemic Response Laws” means the Families First Coronavirus Response Act, Pub. L. No. 116-127 (116th Cong.), the Coronavirus Aid, Relief, and Economic Security Act (Pub. L. No. 116-136), Consolidated Appropriations Act, 2021 (Pub. L. 116-260), the Presidential