“Company Material Adverse Effect” means any effect, change, condition, fact, development, occurrence or event that, individually or in the aggregate, has resulted in, or would reasonably be expected to result in, a material adverse effect on the financial condition, business, assets or results of operations of the Company and its Subsidiaries, taken as a whole, excluding any effect, change, condition, fact, development, occurrence or event resulting from or arising out of (i) general economic or political conditions in the United States or any foreign jurisdiction or in securities, credit or financial markets, including changes in interest rates and changes in exchange rates, (ii) changes or conditions generally affecting the industries, markets or geographical areas in which the Company or any of its Subsidiaries operates, (iii) outbreak or escalation of hostilities, acts of war (whether or not declared), terrorism or sabotage, or other changes in geopolitical conditions, including any material worsening of such conditions threatened or existing as of the date hereof, (iv) any epidemics, pandemics or other disease outbreaks (including COVID-19), natural disasters (including hurricanes, tornadoes, floods or earthquakes) or other force majeure events, including any material worsening of such conditions threatened or existing as of the date hereof, and any governmental or industry responses thereto (including any COVID-19 Measures), (v) any failure by the Company or its Subsidiaries to meet any internal or published (including analyst) projections, expectations, forecasts or predictions in   4


respect of the Company’s revenue, earnings or other financial performance or results of operations, or any failure by the Company to meet its internal budgets, plans or forecasts of its revenue, earnings or other financial performance or results of operations (it being understood that any effect, change, condition, fact, development, occurrence or event giving rise to or contributing to any such failure may be deemed, constitute or be taken into account in determining whether there has been, or would reasonably be expected to be, a Company Material Adverse Effect, to the extent not otherwise excluded in clauses (i) to (xii) hereof), (vi) the downgrade in rating of any debt or debt securities of the Company or any of its Subsidiaries (it being understood that any effect, change, condition, fact, development, occurrence or event giving rise to or contributing to any such downgrade may be deemed, constitute or be taken into account in determining whether there has been, or would reasonably be expected to be, a Company Material Adverse Effect, to the extent not otherwise excluded in clauses (i) to (xii) hereof), (vii) changes in GAAP or the interpretation thereof or the adoption, implementation, promulgation, repeal, modification, amendment, reinterpretation, change or proposal of any Law (including COVID-19 Measures) applicable to the operation of the business of the Company or any of its Subsidiaries, (viii) the taking of any action required by, or the failure to take any action prohibited by, this Agreement, including any action expressly prohibited by Section 5.1, (ix) the taking of any action or refraining from taking any action at Parent or Merger Sub’s written request, (x) any change in the market price or trading volume of the Company’s securities (it being understood that any effect, change, condition, fact, development, occurrence or event giving rise to or contributing to any such change may be deemed, constitute or be taken into account in determining whether there has been, or would reasonably be expected to be, a Company Material Adverse Effect, to the extent not otherwise excluded in clauses (i) to (xii) hereof), (xi) the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby, or the public announcement or pendency of this Agreement or the Merger, including any resulting (A) loss or departure of officers or other employees of the Company or any of its Subsidiaries, or (B) termination or reduction (or potential reduction) or any other resulting negative development in the Company’s or any of its Subsidiaries’ relationships with any of its customers, suppliers, distributors, lenders, other business partners, employees or regulators; provided, however, that this clause (xi) shall not apply to any representation or warranty contained in Section 3.4 or Section 3.17(h) to the extent the purpose of such representation or warranty is to address the consequences resulting from this Agreement or the consummation of the transactions contemplated hereby and (xii) any Proceeding brought or threatened by stockholders of either Parent or the Company (whether on behalf of the Company, Parent or otherwise) asserting allegations of breach of fiduciary duty relating to this Agreement or violations of securities Laws solely in connection with the Merger; provided, however, that in the case of each of clauses (i), (ii), (iii), (iv) and (vii), any such effect, change, condition, fact, development, occurrence or event may be taken into account in determining whether or not there has been a Company Material Adverse Effect to the extent such effect, change, condition, fact, development, occurrence or event has a disproportionate impact on the Company and its Subsidiaries, taken as a whole, as compared to other similarly situated participants in the industry in which the Company and its Subsidiaries operate. (Pages 9-10)

Question: "Ability to consummate" concept is subject to MAE carveouts
Subquestion: <NONE>
Answer: No