“Company Material Adverse Effect” means any event, effect, occurrence, fact, circumstance, condition or change that, individually or in the aggregate, has had or would be reasonably likely to have a material adverse effect on (a) the business, operations, condition (financial or otherwise) or results of operations of the Company and the Company Subsidiaries, taken as a whole, or (b) the ability of the Company to consummate the Transactions; provided, however, that with respect to clause (a) only, none of the following shall be deemed in and of themselves, either alone or in combination, to constitute, and except as provided below, none of the following shall be taken into account in determining whether there is, or would reasonably be likely to be, a Company Material Adverse Effect: 

(i)    general economic or political conditions (or changes or disruptions in such conditions) in the United States or any other country or region in the world, or conditions in the global economy generally; 

(ii)    conditions (or changes or disruptions in such conditions) generally affecting the industries in which the Company and Company Subsidiaries operate; 

(iii)    conditions (or changes or disruptions in such conditions) in the securities markets, capital markets, credit markets, currency markets or other financial markets in the United States or any other country or region in the world, including (A) changes in interest rates in the United States or any other country or region in the world and changes in exchange rates for the currencies of any countries and (B) any suspension of trading in equity, debt, derivative or hybrid securities, securities generally (including Company Common Stock) on any securities exchange or over-the-counter market operating in the United States or any other country or region in the world; 

(iv)    political conditions (or changes or disruptions in such conditions) in the United States or any other country or region in the world or acts of war (whether or not declared), armed or unarmed hostilities or attacks, acts of terrorism, sabotage, or the escalation or worsening thereof in the United States or any other country or region in the world; 

(v)    (A) any actions taken by Parent or any of its controlled Affiliates, (B) the failure of Parent or Merger Subsidiary to comply with their respective obligations under this Agreement, (C) any


actions taken by the Company or the Company Subsidiaries to which Parent has expressly consented or requested in writing or (D) the Company taking any action expressly required by this Agreement (other than by Section 5.2); 

(vi)    any changes in applicable Law (including COVID-19 Measures), accounting rules (including GAAP) or other legal or regulatory conditions or the enforcement, implementation or interpretation thereof; 

(vii)    other than for purposes of Section 3.3(c), Section 3.3(d), Section 4.3 and the conditions to Closing related thereto, the announcement, pendency or completion of this Agreement, including, to the extent resulting therefrom, (A) the loss or departure of officers or other employees of the Company or any of the Company Subsidiaries, or (B) the termination or potential termination of (or the failure or potential failure to renew or enter into) any Contracts with customers, suppliers, distributors or other business partners; 

(viii)    any natural or man-made hurricane, earthquake, flood, disaster, acts of God, pandemic (including COVID-19) or other force majeure events in the United States or any other country or region in the world; 

(ix)    changes in the Company’s stock price or the trading volume of the Company’s stock, in and of itself, or any failure by the Company to meet any internal or published forecasts, estimates, projections or expectations of the Company’s revenue, earnings or other financial performance or results of operations for any period (provided that the underlying causes of such changes or failures (subject to the other provisions of this definition) shall not be excluded); and 

(x)    the availability or cost of equity, debt or other financing to Parent or Merger Subsidiary; 

(xi)    any litigation, claim, action or other proceeding threatened, made or brought based upon, arising out of or with respect to allegations of a breach of fiduciary duty or violation of securities laws, in each case relating to this Agreement or any of the Transactions; or 

except, in the case of clause (i), (ii), (iii), (iv), (vi) or (viii), to the extent the Company or the Company Subsidiaries are disproportionately affected thereby as compared with other participants in the industries in which the Company and the Company Subsidiaries operate (in which case the disproportionate impact or impacts may be taken into account in determining whether there is, or would reasonably be likely to be, a Company Material Adverse Effect). (Pages 66-67)

Question: FLS (MAE) applies to
Subquestion: business and operation of Target
Answer: business and operation of Target, ability to consummate transaction