definiens: means any material adverse change, effect, event, circumstance or development that is materially adverse to or has amaterial adverse effect on ( i ) the business, assets, liabilities, capitalization, financial condition, or results of operations of Public Companyand its Subsidiaries, taken as a whole, or ( b ) the ability of Public Company to consummate the Merger or any of the other transactionscontemplated by this Agreement or to perform any of its covenants or obligations under this Agreement ; provided, however, that none of thefollowing, to the extent arising after the date of this Agreement, either alone or in combination, shall be deemed to be a Public CompanyMaterial Adverse Effect and none of the following shall be taken into account in determining whether there has been or will be a PublicCompany Material Adverse Effect : any change or event caused by or resulting from ( A ) changes in prevailing economic or market conditionsin the United States or any other - 38 -jurisdiction in which such entity has substantial business operations ( except to the extent those changes have a disproportionate effect onPublic Company and its Subsidiaries relative to the other participants in the industry or industries in which Public Company and itsSubsidiaries operate ), ( B ) changes or events affecting the industry or industries in which Public Company and its Subsidiaries operategenerally ( except to the extent those changes or events have a disproportionate effect on Public Company and its Subsidiaries relative tothe other participants in the industry or industries in which Public Company and its Subsidiaries operate ), ( C ) changes in generally acceptedaccounting principles or requirements ( except to the extent those changes have a disproportionate effect on Public Company and itsSubsidiaries relative to the other participants in the industry or industries in which Public Company and its Subsidiaries operate ), ( D ) changesin laws, rules or regulations of general applicability or interpretations thereof by any Governmental Entity ( except to the extent those changeshave a disproportionate effect on Public Company and its Subsidiaries relative to the other participants in the industry or industries in whichPublic Company and its Subsidiaries operate ), ( E ) any natural disaster or any outbreak of major hostilities in which the United States isinvolved or any act of terrorism within the United States or directed against its facilities or citizens wherever located or any governmentalresponse to any of the foregoing ( except to the extent those changes or events have a disproportionate effect on Public Company and itsSubsidiaries relative to the other participants in the industry or industries in which Public Company and its Subsidiaries operate ), ( F ) achange in the public trading price of Public Company Common Stock or the implications thereof, ( G ) a change in the trading volume of PublicCompany Common Stock, ( H ) any failure by Public Company to meet any public estimates or expectations of Public Company ’s revenue, earnings or other financial performance or results of operations for any period, or ( I ) any failure by Public Company to meet any guidance, budgets, plans or forecasts of its revenues, earnings, or other financial performance or results of operations ( but not, in the case of Clauses(F ) through ( I ), the underlying cause of such changes or failures, unless such changes or failures would otherwise be excepted from thisdefinition ), ( J ) any failure to receive consents or approvals in connection with the agreements listed on Section 4.4(b ) of the Public CompanyDisclosure Schedule or ( K ) the transactions contemplated by this Agreement, including the Merger, or the announcement or pendencythereof . For the avoidance of doubt, the parties agree that the terms and as used in this Agreement withan initial lower case shall have their respective customary and ordinary meanings, without regard to the meanings ascribed to PublicCompany Material Adverse Effect or Merger Partner Material Adverse Effect, in each case as defined in this Agreement . Public Companyhas made available to Merger Partner complete and accurate copies of its certificate of incorporation and bylaws and is not in materialdefault under or in material violation of any provision of any such documents