Common use of Company Material Adverse Effect Clause in Contracts

Company Material Adverse Effect. “Company Material Adverse Effect” shall mean any effect, change, development, event or circumstance that, considered together with all other effects, changes, developments, events or circumstances, constitutes a material adverse effect on: (a) the business, financial condition or results of operations of the Acquired Corporations, taken as a whole; or (b) the ability of the Company to consummate the Offer, the Merger or any of the other Contemplated Transactions or to perform any of its obligations under this Agreement; provided, however, that with respect to clause “(a)” above, none of the following, either alone or in combination, shall be deemed to constitute a Company Material Adverse Effect (and shall not be taken into account in determining whether a Company Material Adverse Effect has occurred or is reasonably expected to occur): (i) adverse economic, business, financial, technological or regulatory conditions in the United States or in other locations in which the Acquired Corporations have material operations (including changes in the securities markets and credit markets) that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (ii) adverse economic, business, financial, technological or regulatory conditions that generally affect the application and network performance management industry and that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (iii) changes in the stock price or trading volume of the Company Common Stock (it being understood, however, that, unless otherwise prohibited by clauses “(i)” through “(ix)” of this proviso, the facts or circumstances giving rise to any such change in stock price or trading volume may be taken into account in determining whether there has been a Company Material Adverse Effect); (iv) the failure of the Company to meet internal or securities analysts’ expectations or projections (it being understood, however, that, unless otherwise prohibited by clauses “(i)” through “(ix)” of this proviso, the facts or circumstances giving rise to any such failure may be taken into account in determining whether there has been a Company Material Adverse Effect); (v) any adverse effect, including loss of employees, customers or suppliers by the Company, arising from or otherwise predominately relating to the announcement, pendency or anticipated consummation of any of the Contemplated Transactions; (vi) any adverse effect arising from or otherwise related to changes in Legal Requirements or applicable accounting regulations or principles or interpretations thereof that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (vii) any outbreak or escalation of hostilities, declared or undeclared acts of war or terrorism or any natural disaster, in each case, after the date hereof, that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (viii) any shareholder class action or derivative litigation commenced against the Company since the date of this Agreement and arising from allegations of breach of fiduciary duty of the Company’s directors relating to their approval of this Agreement or from allegations of false or misleading public disclosure by the Company with respect to this Agreement; or (ix) any specific action taken by the Company: (A) at the express written direction of Parent or Acquisition Sub as long as such action was taken in a manner consistent with such direction; or (B) that is required to be so taken by the terms of this Agreement as long as such action was taken in a manner consistent with such requirement (it being understood this clause “(ix)” shall not include any action or inaction by any Acquired Corporation that is pursuant to any of the covenants and obligations contained in Section 5.2 of this Agreement or that is conducted in the ordinary course of business).

Company Material Adverse Effect. “Company Material Adverse Effect” shall mean any effectstate of fact, event, change, developmenteffect, event circumstance, occurrence or circumstance that, considered together with all other effects, changes, developments, events or circumstances, constitutes a material development that is materially adverse effect on: (a) to the business, financial condition or results of operations or financial condition of the Acquired CorporationsCompany and its Subsidiaries, taken as a whole, excluding any event, change, effect, circumstance, occurrence or development that results from or arises out of: (a) changes after the date of this Agreement in GAAP or the authoritative interpretation thereof; or (b) changes after the ability date of the Company to consummate the Offer, the Merger or any of the other Contemplated Transactions or to perform any of its obligations under this AgreementAgreement in applicable Legal Requirements; provided, however, that with respect to clause “(a)” above, none of the following, either alone or in combination, shall be deemed to constitute a Company Material Adverse Effect (and shall not be taken into account in determining whether a Company Material Adverse Effect has occurred or is reasonably expected to occur): (ic) adverse general economic, business, financial, technological capital market or regulatory conditions in political conditions; (d) changes generally affecting the United States or in other locations industry in which the Acquired Corporations have material operations Company and its Subsidiaries participates; (including changes e) the outbreak or escalation of hostilities, any acts of war, sabotage, terrorism or military actions (or any escalation or worsening of any such hostilities, acts of war, sabotage, terrorism or military actions), or the continuation or worsening of the COVID-19 pandemic; (f) the negotiation, announcement or pendency of this Agreement, the Merger or the other transactions contemplated by this Agreement (provided that this clause “(f)” shall not apply to any representation or warranty in the securities markets and credit markets) that do not disproportionately affect the Acquired Corporations, taken as a whole relative Section 2.19 to the other companies in extent that the application purpose of such representation or warranty is to address the consequences resulting from the execution and network performance management industrydelivery of this Agreement or the consummation of the Merger); (iig) adverse economicthe Company’s failure to meet public estimates or forecasts of revenues, businessearnings or other financial metrics, financialin and of itself, technological or regulatory conditions the failure to meet internal projections, forecasts or budgets of revenues, earnings or other financial metrics, in and of itself, provided that generally affect in each case the application and network performance management industry and that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (iii) changes in the stock price underlying cause or trading volume of the Company Common Stock (it being understood, however, that, unless otherwise prohibited by clauses “(i)” through “(ix)” of this proviso, the facts or circumstances giving rise to any such change in stock price or trading volume causes may 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 otherwise permitted by this definition; (ivh) any decline in the failure Company’s stock price or any decline in the market price or trading volume of the Company to meet internal Common Stock on Nasdaq, in and of itself, or securities analysts’ expectations the suspension of trading in or projections (it being understooddelisting of the Company Common Stock on Nasdaq, howeverprovided, that, unless otherwise prohibited by clauses “(i)” through “(ix)” of this proviso, that in each case the facts underlying cause or circumstances giving rise to any such failure causes may 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 otherwise permitted by this definition; (vi) any adverse effect, including loss action taken or omitted to be taken at the written request of employees, customers Parent or suppliers by the Company, arising from or otherwise predominately relating to the announcement, pendency or anticipated consummation taking of any action required by this Agreement; (j) any lawsuit commenced by a stockholder of the Contemplated Transactions; Company (vi) any adverse effect arising from in his, her or otherwise related to changes in Legal Requirements or applicable accounting regulations or principles or interpretations thereof that do not disproportionately affect the Acquired Corporations, taken its capacity as a whole relative to the other companies in the application and network performance management industry; (viistockholder) any outbreak or escalation of hostilities, declared or undeclared acts of war or terrorism or any natural disaster, in each case, after the date hereof, that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (viii) any shareholder class action or derivative litigation commenced against the Company since the date of this Agreement and arising from allegations of alleging breach of fiduciary duty in connection with the execution of the Company’s directors relating to their approval Agreement or the consummation of the transactions contemplated by the Agreement, except, in the case of each of clauses “(a),” “(b),” “(c),” “(d),” and “(e)” of this Agreement or from allegations of false or misleading public disclosure by proviso, to the extent that such changes have a disproportionate adverse impact on the Company with respect and its Subsidiaries relative to this Agreement; other participants in the industries in which the Company and its Subsidiaries operate, in which case the incremental disproportionate impact or (ix) any specific action impacts may be taken by the Company: (A) at the express written direction of Parent into account in determining whether there has been or Acquisition Sub as long as such action was taken in a manner consistent with such direction; or (B) that is required would reasonably be expected to be so taken by the terms of this Agreement as long as such action was taken in a manner consistent with such requirement (it being understood this clause “(ix)” shall not include any action or inaction by any Acquired Corporation that is pursuant to any of the covenants and obligations contained in Section 5.2 of this Agreement or that is conducted in the ordinary course of business)Company Material Adverse Effect.

Company Material Adverse Effect. “Company Material Adverse Effect” shall mean any effect, change, developmentclaim, event or circumstance (collectively, “Effect”) that, considered together with all other effectsEffects, changesis or would reasonably be expected to be or to become materially adverse to, developments, events or circumstances, constitutes has or would reasonably be expected to have or result in a material adverse effect on: (a) the business, financial condition or results of operations of the Acquired Symyx Corporations taken as a whole; provided, however, that, in no event shall any Effects resulting from any of the following, alone or in combination, be deemed to constitute, or be taken into account in determining whether there has occurred, a Company Material Adverse Effect: (i) conditions generally affecting the industries in which the Company participates or the U.S. or global economy as a whole, to the extent that such conditions do not have a disproportionate impact on the Symyx Corporations taken as a whole; (ii) general conditions in the financial markets, and any changes therein (including any changes arising out of acts of terrorism, war, weather conditions or other force majeure events), to the extent that such conditions do not have a disproportionate impact on the Symyx Corporations, taken as a whole; (iii) changes in the trading price or trading volume of Company Common Stock (it being understood, however, that except as otherwise provided in clauses “(i),” “(ii),” “(iv),” “(v)” or “(vii)” of this sentence, any Effect giving rise to or contributing to such changes in the trading price or trading volume of Company Common Stock may give rise to a Company Material Adverse Effect and may be taken into account in determining whether a Company Material Adverse Effect has occurred); (iv) changes in GAAP (or any interpretations of GAAP) applicable to Company or any of its Subsidiaries; (v) the failure to meet public estimates or forecasts of revenues, earnings of other financial metrics, in and of itself, or the failure to meet internal projections, forecasts or budgets of revenues, earnings or other financial metrics, in and of itself (it being understood, however, that, except as otherwise provided in clauses “(i),” “(ii),” “(iii),” “(iv)” or “(vi)” of this sentence, any Effect giving rise to or contributing to any such failure may give rise to a Company Material Adverse Effect and may be taken into account in determining whether a Company Material Adverse Effect has occurred); or (vi) loss of employees, suppliers or customers (including customer orders or Contracts) resulting directly from the announcement or pendency of this Agreement or the Contemplated Transactions; or (b) the ability of the Company to consummate the Offer, the Merger or any of the other Contemplated Transactions or to perform any of its covenants or obligations under this Agreement; provided, however, that with respect to clause “(a)” above, none of the following, either alone or in combination, shall be deemed to constitute a Company Material Adverse Effect (and shall not be taken into account in determining whether a Company Material Adverse Effect has occurred or is reasonably expected to occur): (i) adverse economic, business, financial, technological or regulatory conditions in the United States or in other locations in which the Acquired Corporations have material operations (including changes in the securities markets and credit markets) that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (ii) adverse economic, business, financial, technological or regulatory conditions that generally affect the application and network performance management industry and that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (iii) changes in the stock price or trading volume of the Company Common Stock (it being understood, however, that, unless otherwise prohibited by clauses “(i)” through “(ix)” of this proviso, the facts or circumstances giving rise to any such change in stock price or trading volume may be taken into account in determining whether there has been a Company Material Adverse Effect); (iv) the failure of the Company to meet internal or securities analysts’ expectations or projections (it being understood, however, that, unless otherwise prohibited by clauses “(i)” through “(ix)” of this proviso, the facts or circumstances giving rise to any such failure may be taken into account in determining whether there has been a Company Material Adverse Effect); (v) any adverse effect, including loss of employees, customers or suppliers by the Company, arising from or otherwise predominately relating to the announcement, pendency or anticipated consummation of any of the Contemplated Transactions; (vi) any adverse effect arising from or otherwise related to changes in Legal Requirements or applicable accounting regulations or principles or interpretations thereof that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (vii) any outbreak or escalation of hostilities, declared or undeclared acts of war or terrorism or any natural disaster, in each case, after the date hereof, that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (viii) any shareholder class action or derivative litigation commenced against the Company since the date of this Agreement and arising from allegations of breach of fiduciary duty of the Company’s directors relating to their approval of this Agreement or from allegations of false or misleading public disclosure by the Company with respect to this Agreement; or (ixc) any specific action taken by Parent’s ability to vote, transfer, receive dividends with respect to or otherwise exercise ownership rights with respect to the Company: (A) at the express written direction of Parent or Acquisition Sub as long as such action was taken in a manner consistent with such direction; or (B) that is required to be so taken by the terms of this Agreement as long as such action was taken in a manner consistent with such requirement (it being understood this clause “(ix)” shall not include any action or inaction by any Acquired Corporation that is pursuant to any stock of the covenants and obligations contained in Section 5.2 of this Agreement Surviving Corporation or that is conducted in to exercise its rights under the ordinary course of business)Agreement.

Company Material Adverse Effect. “Company Material Adverse Effect” shall mean any effect, change, development, event or circumstance that, considered together with all other effects, changes, developments, events or circumstances, constitutes has had or resulted in, or would reasonably be expected to have or result in, a material adverse effect on: (a) on the business, condition (financial condition or otherwise) or results of operations of the Acquired CorporationsCompanies, taken as a whole; or (b) the ability of the Company to consummate the Offer, the Merger or any of the other Contemplated Transactions or to perform any of its obligations under this Agreement; provided, however, that with respect to clause “(a)” above, none of the following, either alone or in combination, following shall not be deemed to constitute a Company Material Adverse Effect (and shall not be taken into account in determining whether a Company Material Adverse Effect has occurred or is reasonably expected to occur): (i) adverse economic, business, financial, technological or regulatory economic conditions in the United States or in other locations in which the Acquired Corporations Companies have material operations (including changes in the securities markets and credit markets) that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industryoperations; (ii) adverse economic, business, financial, technological or regulatory economic conditions that generally affect the application and network performance management industry and that do not disproportionately affect in which the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industryCompanies operate; (iii) changes in the stock price or trading volume of the Company Common Stock (it being understood, however, that, unless otherwise prohibited by clauses “(i)” through “(ix)” of this proviso, that the facts or circumstances giving rise to any such change in stock price or trading volume may be taken into account in determining whether there has been a Company Material Adverse EffectEffect has occurred or would reasonably be expected to occur); (iv) the failure of the Company to meet internal or any securities analysts’ expectations published projections of the Company’s earnings, revenues or projections other financial performance or results of operations, or any failure by the Company to meet any internal budgets, plans or forecasts of its revenues, earnings or other financial performance or results of operations (it being understood, however, that, unless otherwise prohibited by clauses “(i)” through “(ix)” of this proviso, that the facts or circumstances giving rise to any such failure may be taken into account in determining whether there has been a Company Material Adverse EffectEffect has occurred or would reasonably be expected to occur); (v) any adverse effect, including loss changes after the date of employees, customers this Agreement in Legal Requirements or suppliers by other legal or regulatory conditions (or the Company, arising from interpretation thereof) or otherwise predominately relating to changes after the announcement, pendency date of this Agreement in GAAP (or anticipated consummation of any of the Contemplated Transactionsinterpretation thereof); (vi) any adverse effect arising from or otherwise related to changes after the date of this Agreement in Legal Requirements or applicable accounting regulations or principles or interpretations thereof that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies political conditions in the application and network performance management industryU.S. or any other country in the world, or acts of war, sabotage or terrorism (including any escalation or general worsening of any such acts of war, sabotage or terrorism) in the U.S. or any other country in the world; (vii) any outbreak or escalation of hostilities, declared or undeclared acts of war God, natural disasters, weather conditions or terrorism or any natural disaster, in each case, other calamities occurring after the date hereof, that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industryof this Agreement; (viii) the announcement or pendency of this Agreement, including, to the extent arising therefrom: (A) losses of customers, suppliers, distributors or other business partners; or (B) losses of employees; and (ix) any shareholder stockholder class action or derivative litigation commenced against the Company since the date of this Agreement and arising from allegations of breach of fiduciary duty of the Company’s directors relating to their approval of this Agreement or from allegations of false or misleading public disclosure by the Company with respect to this Agreement; or (ix) any specific action taken by provided, however, that the Company: (A) at the express written direction of Parent or Acquisition Sub as long as such action was taken exceptions set forth in a manner consistent with such direction; or (B) that is required to be so taken by the terms of this Agreement as long as such action was taken in a manner consistent with such requirement (it being understood this clause clauses “(ixi),” “(ii),” and “(v)” of the foregoing proviso shall not include any action or inaction by any apply to the extent that the Acquired Corporation that is pursuant Companies are disproportionately affected thereby relative to any other companies of the covenants and obligations contained in Section 5.2 of this Agreement or that is conducted comparable size in the ordinary course of business)same industries and geographies in which the Acquired Companies operate.

Company Material Adverse Effect. “Company Material Adverse Effect” shall mean any change, effect, change, development, event circumstance, condition or circumstance worsening thereof (“Effect”) that, considered individually or when taken together with all other effectsEffects that exist at the date of determination, changes, developments, events (i) has had or circumstances, constitutes would reasonably be likely to have a material adverse effect on: (a) on the business, financial condition or operations, results of operations or condition (financial or otherwise) of the Acquired CorporationsCompany and the Company Subsidiaries, taken as a whole; or (bii) would reasonably be expected to directly or indirectly materially impair the ability validity or enforceability of this Agreement, prevent or materially delay the consummation of the Company transactions contemplated by this Agreement or subject Parent or Purchaser to consummate criminal or material civil liability in connection with the Offer, the Merger or any of the other Contemplated Transactions or to perform any of its obligations under transactions contemplated by this Agreement; provided, however, that with respect to clause “(a)” above, none of the following, following shall be deemed either alone or in combinationcombination to constitute, shall be deemed to constitute a Company Material Adverse Effect (and shall not be taken into account in determining whether a Company Material Adverse Effect has occurred or is reasonably expected to occur): (i) adverse economic, business, financial, technological or regulatory conditions in the United States or in other locations in which the Acquired Corporations have material operations (including changes in the securities markets and credit markets) that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (ii) adverse economic, business, financial, technological or regulatory conditions that generally affect the application and network performance management industry and that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (iii) changes in the stock price or trading volume none of the Company Common Stock (it being understood, however, that, unless otherwise prohibited by clauses “(i)” through “(ix)” of this proviso, the facts or circumstances giving rise to any such change in stock price or trading volume may following shall be taken into account in determining whether there has been or would be, a Company Material Adverse Effect): (A) any Effect that results from general economic, business, financial or market conditions in the United States or global economy as a whole; (ivB) any Effect arising from or otherwise relating to any of the industries or industry sectors in which the Company or any of the Company Subsidiaries operates to the extent that it does not disproportionately affect the Company and the Company Subsidiaries (taken as a whole) relative to other participants in the medical device industry; (C) any Effect arising from or otherwise relating to any act of terrorism, war, national or international calamity or any other similar event; (D) any Effect (including any loss of employees, any cancellation of or delay in customer orders or any litigation) arising from or otherwise relating to the announcement or pendency of this Agreement, the Offer or the Merger; (E) the failure of the Company to meet internal or securities analysts’ expectations or projections, in and of itself (for the avoidance of doubt, this clause (E) shall not preclude the underlying cause of any such failure to meet internal or analysts’ expectations or projections (it being understood, however, that, unless otherwise prohibited by clauses “(i)” through “(ix)” of this proviso, the facts or circumstances giving rise to any such failure may be taken into account in determining whether there has been a Company Material Adverse Effect); (vF) any adverse effect, including loss of employees, customers or suppliers by the Company, Effect arising from or otherwise predominately relating to any action required by this Agreement to be taken by the announcement, pendency or anticipated consummation of any of the Contemplated Transactions; (vi) any adverse effect arising from or otherwise related to changes in Legal Requirements or applicable accounting regulations or principles or interpretations thereof that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (vii) any outbreak or escalation of hostilities, declared or undeclared acts of war or terrorism Company or any natural disaster, Company Subsidiary; or (G) a decline in each case, after the date hereof, that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (viii) any shareholder class action or derivative litigation commenced against the Company since the date of this Agreement and arising from allegations of breach of fiduciary duty of the Company’s directors relating to their approval stock price, in and of itself (for the avoidance of doubt, this Agreement or clause (G) shall not preclude Parent from allegations asserting that the underlying cause of false or misleading public disclosure by the Company with respect to this Agreement; or (ix) any specific action taken by such decline in the Company: (A) at the express written direction of Parent or Acquisition Sub as long as such action was ’s stock price being taken into account in determining whether there has been a manner consistent with such direction; or (B) that is required to be so taken by the terms of this Agreement as long as such action was taken in a manner consistent with such requirement (it being understood this clause “(ix)” shall not include any action or inaction by any Acquired Corporation that is pursuant to any of the covenants and obligations contained in Section 5.2 of this Agreement or that is conducted in the ordinary course of businessMaterial Adverse Effect).

Company Material Adverse Effect. “Company Material Adverse Effect” shall mean any effect, change, developmentclaim, event or circumstance (collectively, “Effect”) that, considered together with all other effectsEffects, changesis or could reasonably be expected to become materially adverse to, developments, events or circumstances, constitutes has or would reasonably be expected to have or result in a material adverse effect on: (a) on the business, financial condition or results of operations of the Acquired Corporations, Target Companies taken as a whole; or (b) the ability of the Company to consummate the Offer, the Merger or any of the other Contemplated Transactions or to perform any of its obligations under this Agreement; provided, however, that with respect to clause “(a)” above, none in no event shall any Effects resulting from any of the following, either alone or in combination, shall be deemed to constitute constitute, or be taken into account in determining whether there has occurred or could or would occur, a Company Material Adverse Effect: (i) conditions generally affecting the industry in which any Target Company participates or the U.S. or global economy as a whole, to the extent that such conditions do not have a materially disproportionate impact on the Target Companies taken as a whole as compared to other industry participants; (ii) general conditions in the financial markets, and any changes therein, and any changes arising out of acts of terrorism, war, weather conditions, viruses or pandemics or other force majeure events, to the extent that such conditions do not have a materially disproportionate impact on the Target Companies, taken as a whole, as compared to other industry participants; (iii) changes in the trading price or trading volume of Company Common Stock, or the suspension of trading in or delisting of the Company’s securities on the Nasdaq Capital Market (it being understood, however, that except as otherwise provided in this sentence, any Effect giving rise to or contributing to such changes in the trading price or trading volume of Company Common Stock may give rise to a Company Material Adverse Effect (and shall not may be taken into account in determining whether a Company Material Adverse Effect has occurred or is reasonably expected to could or would occur): (i) adverse economic, business, financial, technological or regulatory conditions in the United States or in other locations in which the Acquired Corporations have material operations (including changes in the securities markets and credit markets) that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry); (ii) adverse economic, business, financial, technological or regulatory conditions that generally affect the application and network performance management industry and that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (iiiiv) changes in the stock price GAAP (or trading volume any interpretations of GAAP) or Legal Requirements applicable to the Company Common Stock or any of its Subsidiaries; (v) the failure to meet public estimates or forecasts of revenues, earnings of other financial metrics, in and of itself, or the failure to meet internal projections, forecasts or budgets of revenues, earnings or other financial metrics, in and of itself (it being understood, however, that, unless except as otherwise prohibited by clauses “(i)” through “(ix)” of provided in this provisosentence, the facts or circumstances any Effect giving rise to or contributing to any such change in stock price or trading volume failure may give rise to a Company Material Adverse Effect and may be taken into account in determining whether there has been a Company Material Adverse EffectEffect has occurred or could or would occur); (ivvi) any stockholder litigation or other claims arising from or relating to this Agreement or the failure Contemplated Transactions and/or relating to a breach of the fiduciary duties of the Company Board to meet internal the Company’s stockholders under applicable Legal Requirements; (vii) resulting or securities analysts’ expectations arising out of the execution, announcement or projections (it being understood, however, that, unless otherwise prohibited by clauses “(i)” through “(ix)” performance of this proviso, the facts Agreement or circumstances giving rise to any such failure may be taken into account in determining whether there has been a Company Material Adverse Effect); (v) any adverse effect, including loss of employees, customers or suppliers by the Company, arising from or otherwise predominately relating to the announcement, pendency or anticipated consummation of any of the Contemplated Transactions, including the loss of employees, suppliers or customers (including customer orders or Contracts); (vi) any adverse effect arising from or otherwise related to changes in Legal Requirements or applicable accounting regulations or principles or interpretations thereof that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (vii) any outbreak or escalation of hostilities, declared or undeclared acts of war or terrorism or any natural disaster, in each case, after the date hereof, that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (viii) the taking of any shareholder class action or derivative litigation commenced against the Company since the date of this Agreement and arising from allegations of breach of fiduciary duty of the Company’s directors relating expressly required to their approval of be taken pursuant to this Agreement or from allegations the taking of false or misleading public disclosure any action requested by the Company with respect to this Agreement; or (ix) any specific action taken by the Company: (A) at the express written direction of Parent or Acquisition Sub as long as such action was taken in a manner consistent with such direction; or (B) that is required to be so taken by pursuant to the terms of this Agreement as long as such action was to the extent taken in a manner consistent accordance with such requirement (it being understood this clause “(ix)” shall not include any action or inaction by any Acquired Corporation that is pursuant to any of the covenants and obligations contained in Section 5.2 of this Agreement or that is conducted in the ordinary course of business)request.

Company Material Adverse Effect. “Company Material Adverse Effect” shall mean any effect, change, development, event or circumstance circumstance, condition or statement of fact that, considered together with all other effects, changes, developments, events or circumstances, constitutes conditions or statements of fact, has had or would reasonably be expected to have, individually or in the aggregate, a material adverse effect on: (a) the business, financial condition or condition, results of operations of the Acquired Corporations, taken as a whole; or (b) the ability of the Company to consummate the Offer, the Merger or any of the other Contemplated Transactions or to perform any of its obligations under this AgreementTransactions; provided, however, that with respect to clause “(a)” above, none of the following, either alone or in combination, shall be deemed to constitute a Company Material Adverse Effect (and shall not be taken into account in determining whether a Company Material Adverse Effect has occurred or is reasonably expected to occuroccurred): (i) adverse economic, business, financial, technological financial or regulatory conditions in the United States or in other locations in which the Acquired Corporations have material operations (including changes in the securities markets and credit markets) that do not disproportionately disproportionately, in a material respect, affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management semiconductor industry; (ii) adverse economic, business, financial, technological financial or regulatory conditions that generally affect the application and network performance management semiconductor industry and that do not disproportionately disproportionately, in a material respect, affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management semiconductor industry; (iii) changes in the stock price or trading volume of the Company Common Stock (it being understood, however, that, unless otherwise prohibited by clauses “(i)” through “(ixviii)” of this proviso, the facts or circumstances giving rise to any such change in stock price or trading volume may be taken into account in determining whether there has been a Company Material Adverse Effect); (iv) the failure of the Company to meet internal or securities analysts’ expectations or projections (it being understood, however, that, unless otherwise prohibited by clauses “(i)” through “(ixviii)” of this proviso, the facts or circumstances giving rise to any such failure may be taken into account in determining whether there has been a Company Material Adverse Effect); (v) any adverse effect, including loss of employees, customers or suppliers by the Company, arising from or otherwise predominately relating to the announcement, pendency or anticipated consummation of any of the Contemplated TransactionsTransactions (other than for purposes of the representation or warranties set forth in Section 3.9(g), Section 3.14(b) (last sentence), Section 3.16(j) and Section 3.24, but subject to the corresponding disclosures set forth in the Disclosure Schedule); (vi) any adverse effect arising from or otherwise related to changes in Legal Requirements or applicable accounting regulations or principles or interpretations thereof that do not disproportionately in a material respect affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management semiconductor industry; (vii) any outbreak or escalation of hostilities, declared or undeclared acts of war or terrorism or any natural disaster, in each case, after the date hereof, hereof that do not disproportionately disproportionately, in a material respect, affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management semiconductor industry; or (viii) any shareholder stockholder class action or derivative litigation commenced against the Company since the date of this Agreement and arising from allegations of breach of fiduciary duty of the Company’s directors relating to their approval of this Agreement or from allegations of false or misleading public disclosure by the Company with respect to this Agreement; or (ix) any specific action taken by the Company: (A) at the express written direction of Parent or Acquisition Sub as long as such action was taken in a manner consistent with such direction; or (B) that is required to be so taken by the terms of this Agreement as long as such action was taken in a manner consistent with such requirement (it being understood this clause “(ix)” shall not include any action or inaction by any Acquired Corporation that is pursuant to any of the covenants and obligations contained in Section 5.2 of this Agreement or that is conducted in the ordinary course of business).

Company Material Adverse Effect. “Company Material Adverse Effect” shall mean any change, effect, change, development, event circumstance, condition or circumstance worsening thereof (“Effect”) that, considered individually or when taken together with all other effectsEffects that exist at the date of determination, changes, developments, events (i) has had or circumstances, constitutes would reasonably be likely to have a material adverse effect on: (a) on the business, financial condition or operations, results of operations or condition (financial or otherwise) of the Acquired CorporationsCompany and the Company Subsidiaries, taken as a whole; or (bii) would reasonably be expected to directly or indirectly materially impair the ability validity or enforceability of this Agreement, prevent or materially delay the consummation of the Company transactions contemplated by this Agreement or subject Parent or Purchaser to consummate criminal or material civil liability in connection with the Offer, the Merger or any of the other Contemplated Transactions or to perform any of its obligations under transactions contemplated by this Agreement; provided, however, that with respect to clause “(a)” above, none of the following, following shall be deemed either alone or in combinationcombination to constitute, shall be deemed to constitute a Company Material Adverse Effect (and shall not be taken into account in determining whether a Company Material Adverse Effect has occurred or is reasonably expected to occur): (i) adverse economic, business, financial, technological or regulatory conditions in the United States or in other locations in which the Acquired Corporations have material operations (including changes in the securities markets and credit markets) that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (ii) adverse economic, business, financial, technological or regulatory conditions that generally affect the application and network performance management industry and that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (iii) changes in the stock price or trading volume none of the Company Common Stock (it being understood, however, that, unless otherwise prohibited by clauses “(i)” through “(ix)” of this proviso, the facts or circumstances giving rise to any such change in stock price or trading volume may following shall be taken into account in determining whether there has been or would be, a Company Material Adverse Effect): (A) any Effect that results from general economic, business, financial or market conditions in the United States or global economy as a whole; (ivB) any Effect arising from or otherwise relating to any of the industries or industry sectors in which the Company or any of the Company Subsidiaries operates to the extent that it does not disproportionately affect the Company and the Company Subsidiaries (taken as a whole) relative to other participants in the medical device industry; (C) any Effect arising from or otherwise relating to any act of terrorism, war, national or international calamity or any other similar event; (D) any Effect (including any loss of employees, any cancellation of or delay in customer orders or any litigation) arising from or otherwise relating to the announcement or pendency of this Agreement, the Offer, the Merger or any prior or subsequent offer, proposal or possible transaction with, by or involving Parent, Purchaser, Xxxxxxx or any affiliate thereof; (E) the failure of the Company to meet internal or securities analysts’ expectations or projections, in and of itself (for the avoidance of doubt, this clause (E) shall not preclude the underlying cause of any such failure to meet internal or analysts’ expectations or projections (it being understood, however, that, unless otherwise prohibited by clauses “(i)” through “(ix)” of this proviso, the facts or circumstances giving rise to any such failure may be taken into account in determining whether there has been a Company Material Adverse Effect); (vF) any adverse effect, including loss of employees, customers or suppliers by the Company, Effect arising from or otherwise predominately relating to any action required by this Agreement to be taken by the announcement, pendency or anticipated consummation of any of the Contemplated Transactions; (vi) any adverse effect arising from or otherwise related to changes in Legal Requirements or applicable accounting regulations or principles or interpretations thereof that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (vii) any outbreak or escalation of hostilities, declared or undeclared acts of war or terrorism Company or any natural disaster, Company Subsidiary; or (G) a decline in each case, after the date hereof, that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (viii) any shareholder class action or derivative litigation commenced against the Company since the date of this Agreement and arising from allegations of breach of fiduciary duty of the Company’s directors relating to their approval stock price, in and of itself (for the avoidance of doubt, this Agreement or clause (G) shall not preclude Parent from allegations asserting that the underlying cause of false or misleading public disclosure by the Company with respect to this Agreement; or (ix) any specific action taken by such decline in the Company: (A) at the express written direction of Parent or Acquisition Sub as long as such action was ’s stock price being taken into account in determining whether there has been a manner consistent with such direction; or (B) that is required to be so taken by the terms of this Agreement as long as such action was taken in a manner consistent with such requirement (it being understood this clause “(ix)” shall not include any action or inaction by any Acquired Corporation that is pursuant to any of the covenants and obligations contained in Section 5.2 of this Agreement or that is conducted in the ordinary course of businessMaterial Adverse Effect).

Company Material Adverse Effect. “Company Material Adverse Effect” " shall mean any effect, change, development, event or circumstance an effect that, considered together individually or considered collectively (without duplication) with all other such effects, changes, developments, events or circumstances, constitutes a material is materially adverse effect on: (a) to the business, condition (financial condition or otherwise) or results of operations of the Acquired CorporationsCompany and its Subsidiaries, taken as a whole; or (b) the ability of the Company to consummate the Offer, the Merger or any of the other Contemplated Transactions or to perform any of its obligations under this Agreement; provided, however, that with respect to clause “(a)” above, none of the following, following shall be deemed either alone or in combinationcombination to constitute, shall be deemed to constitute a Company Material Adverse Effect (and shall not be taken into account in determining whether a Company Material Adverse Effect has occurred or is reasonably expected to occur): (i) adverse economic, business, financial, technological or regulatory conditions in the United States or in other locations in which the Acquired Corporations have material operations (including changes in the securities markets and credit markets) that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (ii) adverse economic, business, financial, technological or regulatory conditions that generally affect the application and network performance management industry and that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (iii) changes in the stock price or trading volume none of the Company Common Stock (it being understood, however, that, unless otherwise prohibited by clauses “(i)” through “(ix)” of this proviso, the facts or circumstances giving rise to any such change in stock price or trading volume may following shall be taken into account in determining whether there has been or would be, a Company Material Adverse Effect: (A) any adverse effect that results from general economic, business, financial or market conditions; (B) any adverse effect attributable to conditions affecting any of the industries or industry sectors in which the Company or any of its Subsidiaries operates (except to the extent that the Company or its Subsidiaries are adversely affected disproportionately relative to the other participants in such industries or industry sectors); (ivC) any adverse effect arising from or otherwise relating to fluctuations in the value of any currency; (D) any adverse effect arising from or otherwise relating to any act of terrorism, war, national or international calamity or any other similar event; (E) any adverse effect (including any loss of employees or any cancellation of or delay in customer orders) arising from or otherwise relating to the announcement or pendency of the Agreement, the Offer or the Merger (including stockholder litigation in connection therewith); (F) any adverse effect arising from or otherwise relating to actions taken by the Company or any of its Subsidiaries pursuant to the Company's obligations under the Agreement or taken at the direction of Parent or Acquisition Sub; (G) any adverse effect arising from or otherwise relating to changes in GAAP; (H) any adverse effect with respect to which a reserve has been established on the April Balance Sheet (to the extent of the amount of such reserve); (I) any adverse effect that is of a type not requiring the establishment of a reserve on the April Balance Sheet and that would reasonably be expected to arise from any matter described in or incorporated by reference in the Company Disclosure Schedule; (J) any adverse effect arising from or otherwise relating to any agreement to enter into, or the implementation of, an Agreed Arrangement; (K) any adverse effect arising from or otherwise relating to any modification to any of the CT Contracts that eliminates or limits any of the Company's exclusivity rights thereunder or any other event that has the effect of eliminating or limiting such rights; (L) any seasonal reduction in revenues or earnings that is of a magnitude consistent with prior periods; or (M) the failure of the Company to meet internal or securities analysts’ ' expectations or projections (it being understood, however, that, unless otherwise prohibited by clauses “provided that (i)” through “) shortfalls in financial results which result in such missed expectations or projections, and (ix)” ii) the underlying causes of this proviso, the facts or circumstances giving rise to any such failure shortfalls, may in each case, individually or when aggregated with other effects, qualify as a "Company Material Adverse Effect"). For purposes of the Agreement, any termination of the CT Contracts by CT as a result of a breach of the CT Contracts by the Company will be taken into account in determining whether there has been deemed to have a Company Material Adverse EffectEffect if such termination is reasonably likely to have a Company Material Adverse Effect (disregarding, solely for purposes of this sentence, clauses "(E); " and "(v) any adverse effect, including loss F)" of employees, customers or suppliers by the Company, arising from or otherwise predominately relating proviso to the announcement, pendency or anticipated consummation of any of the Contemplated Transactions; (vi) any adverse effect arising from or otherwise related to changes in Legal Requirements or applicable accounting regulations or principles or interpretations thereof that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (vii) any outbreak or escalation of hostilities, declared or undeclared acts of war or terrorism or any natural disaster, in each case, after the date hereof, that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (viii) any shareholder class action or derivative litigation commenced against the Company since the date of this Agreement and arising from allegations of breach of fiduciary duty of the Company’s directors relating to their approval of this Agreement or from allegations of false or misleading public disclosure by the Company with respect to this Agreement; or (ix) any specific action taken by the Company: (A) at the express written direction of Parent or Acquisition Sub as long as such action was taken in a manner consistent with such direction; or (B) that is required to be so taken by the terms of this Agreement as long as such action was taken in a manner consistent with such requirement (it being understood this clause “(ix)” shall not include any action or inaction by any Acquired Corporation that is pursuant to any of the covenants and obligations contained in Section 5.2 of this Agreement or that is conducted in the ordinary course of businesspreceding sentence).

Company Material Adverse Effect. An event, occurrence, violation, inaccuracy, circumstance or other matter shall be deemed to have a “Company Material Adverse Effect” shall mean on the Acquired Corporations if such event, violation, inaccuracy, circumstance or other matter (whether or not any effect, change, development, event or circumstance thatsuch matter, considered together with all other effectsmatters, changeswould constitute a breach of the representations, developmentswarranties, events covenants or circumstancesagreements of the Company set forth in the Agreement) had or would reasonably be expected to have, constitutes individually or in the aggregate, a material adverse effect on: on (a) the business, financial condition or results of operations of the Acquired Corporations, Corporations taken as a whole; whole or (b) the ability of the Company to consummate the Offer, the Merger or any of the other Contemplated Transactions or to perform any of its obligations under this Agreementin a timely manner; provided, however, that with respect to clause “(a)” above, none of the followingfollowing shall be deemed in and of themselves, either alone or in combination, shall be deemed to constitute a Company Material Adverse Effect (constitute, and shall not be taken into account in determining whether a Company Material Adverse Effect has occurred or is reasonably expected to occur): (i) adverse economic, business, financial, technological or regulatory conditions in the United States or in other locations in which the Acquired Corporations have material operations (including changes in the securities markets and credit markets) that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (ii) adverse economic, business, financial, technological or regulatory conditions that generally affect the application and network performance management industry and that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (iii) changes in the stock price or trading volume none of the Company Common Stock (it being understood, however, that, unless otherwise prohibited by clauses “(i)” through “(ix)” of this proviso, the facts or circumstances giving rise to any such change in stock price or trading volume may following shall be taken into account in determining whether there has been is, or would reasonably likely to be, a Company Material Adverse EffectEffect on the Acquired Corporations for purposes of clause (a) above: (i) any change in the market price or trading volume of the Company’s stock; (ii) any event, violation, inaccuracy, circumstance or other matter resulting from the announcement or pendency of the Transactions (other than for purposes of any representation or warranty contained in Section 3.21 (Non-Contravention; Consents) but subject to disclosures in Part 3.21 of the Company Disclosure Schedule); (iii) any event, circumstance, change or effect in the industries in which the Acquired Corporations operate or in the economy generally or other general business, financial or market conditions, except to the extent that the Acquired Corporations are adversely affected disproportionately relative to the other participants in such industries or the economy generally, as applicable; (iv) any event, circumstance, change or effect arising directly or indirectly from or otherwise relating to fluctuations in the value of any currency; (v) any event, circumstance, change or effect arising directly or indirectly from or otherwise relating to any act of terrorism, war, national or international calamity or any other similar event, except to the extent that such event, circumstance, change or effect disproportionately affects the Acquired Corporations relative to other participants in the industries in which the Acquired Corporations operate or the economy generally, as applicable; (vi) the failure of the Company to meet internal or securities analysts’ expectations or projections (it being understood, however, that, unless otherwise prohibited by clauses “(i)” through “(ix)” or the results of this proviso, operations of the facts or circumstances giving rise to any such failure may be taken into account in determining whether there has been a Company Material Adverse Effect)Company; (v) any adverse effect, including loss of employees, customers or suppliers by the Company, arising from or otherwise predominately relating to the announcement, pendency or anticipated consummation of any of the Contemplated Transactions; (vivii) any adverse effect arising directly from or otherwise related directly relating to changes in Legal Requirements any action taken by the Company at the written direction of Parent or applicable accounting regulations any action specifically required to be taken by the Company, or principles or interpretations thereof the failure of the Company to take any action that do not disproportionately affect the Acquired Corporations, taken as a whole relative Company is specifically prohibited by the terms of this Agreement from taking to the other companies in the application and network performance management industry; (vii) any outbreak or escalation of hostilities, declared or undeclared acts of war or terrorism or any natural disaster, in each case, extent Parent fails to give its consent thereto after the date hereof, that do not disproportionately affect the Acquired Corporations, taken as a whole relative written request therefor pursuant to the other companies in the application and network performance management industrySection 5.2; (viii) any shareholder class action event, circumstance, change or derivative litigation commenced against the Company since the date of this Agreement and effect resulting or arising from allegations of Parent’s or Purchaser’s breach of fiduciary duty of the Company’s directors relating to their approval of this Agreement or from allegations of false or misleading public disclosure by the Company with respect to this Agreement; or (ix) any specific event, circumstance, change or effect arising directly or indirectly from or otherwise relating to any change in, or any compliance with or action taken by for the Company: purpose of complying with, any Legal Requirement or GAAP (A) at or interpretations of any Legal Requirement or GAAP), except to the express written direction of Parent extent such event, circumstance, change or Acquisition Sub effect disproportionately affects the Acquired Corporations relative to other participants in the industries in which the Acquired Corporations operate or the economy generally, as long as such action was taken in a manner consistent with such directionapplicable; or (B) that is required to be so taken by the terms of this Agreement as long as such action was taken in a manner consistent with such requirement (it being understood this clause that the exceptions in clauses “(ixi)” shall not include any action or inaction by any Acquired Corporation that is pursuant to any of the covenants and obligations contained in Section 5.2 of this Agreement or that is conducted in the ordinary course of business).“

Company Material Adverse Effect. “Company Material Adverse Effect” shall mean any effect, change, development, event or circumstance that, considered together with all other effects, changes, developments, events or circumstances, constitutes is materially adverse to, or has a material adverse effect on: , (a) the business, financial condition condition, capitalization, assets (including Intellectual Property), cash position, liabilities (accrued, contingent or results of otherwise), operations or financial performance of the Acquired Corporations, Corporations taken as a whole; , or (b) the ability of the Company to consummate the Offer, the Merger or any of the other Contemplated Transactions or to perform any of its obligations under this the Agreement; provided, however, that with respect to clause “(a)” above, none of the following, following shall be deemed either alone or in combinationcombination to constitute, and none of the following shall be deemed to constitute a Company Material Adverse Effect (and shall not be taken into account in determining whether there has been or would be, a Company Material Adverse Effect has occurred or is reasonably expected Effect: (a) any adverse effect resulting from general economic conditions to occur): (i) adverse economic, business, financial, technological or regulatory conditions in the United States or in other locations in which the Acquired Corporations have material operations (including changes in the securities markets and credit markets) extent that they do not disproportionately affect the Acquired Corporations, taken as a whole relative whole, (b) any adverse effect resulting from general conditions in the industries in which the Acquired Corporations operate to the other companies in the application and network performance management industry; (ii) adverse economic, business, financial, technological or regulatory conditions extent that generally affect the application and network performance management industry and that they do not disproportionately affect the Acquired Corporations, taken as a whole relative whole, (c) any adverse effect resulting from any natural disaster or any acts of terrorism, sabotage, military action or war or any escalation or worsening thereof to the other companies extent they do not disproportionately affect the Acquired Corporations, taken as a whole, (d) any adverse effect resulting from changes (after the date of this Agreement) in GAAP or applicable Legal Requirements, (e) any change in the application and network performance management industry; (iii) changes in the stock trading price or trading volume of the Company Common Stock (it being understood, however, that, unless otherwise prohibited by clauses “(i)” through “(ix)” of this proviso, the facts or circumstances giving rise to any such change in stock price or trading volume may be taken into account in determining whether there has been a Company Material Adverse Effect); (iv) adverse effect resulting from the failure of the Company to meet internal or securities analysts’ expectations or projections (it being understood, however, thatthat any facts, events, changes or developments causing or contributing to such changes in the trading price of Company Common Stock or such failures to meet expectations or projections may (unless otherwise prohibited by clauses “addressed in any of (ia)” through “, (ixb)” , (c), (d), (f) or (g) of this proviso, the facts or circumstances giving rise to any such failure definition) constitute a Material Adverse Effect and may be taken into account in determining whether there has been a Company Material Adverse EffectEffect has occurred); , (vf) any adverse effectemployee attrition, including loss slowdown in deployments, reduction in sales efforts, shifting of employeesor reduction in remaining traffic or refusal to consent to assignment by any of Equant, customers AT&T, MCI or suppliers Fiberlink or cancellation of, failure to obtain, or delay in obtaining, orders, or failure to initiate or continue, or slowdown in, deployment, from, by the Company, arising from or otherwise predominately relating to Company’s Mobile Office solution customers, in each case resulting from the announcement, pendency or anticipated consummation of any of the Contemplated Transactions; Merger, or (vig) any adverse effect arising from Company Stockholder Litigation in which, based on the underlying merits of such litigation, the prospects for an award of damages or otherwise related to changes in Legal Requirements or applicable accounting regulations or principles or interpretations thereof that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (vii) any outbreak or escalation of hostilities, declared or undeclared acts of war or terrorism or any natural disaster, in each case, after the date hereof, that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (viii) any shareholder class action or derivative litigation commenced injunctive relief against the Company since the date of this Agreement and arising from allegations of breach of fiduciary duty of the Company’s its directors relating to their approval of this Agreement or from allegations of false or misleading public disclosure by the Company with respect to this Agreement; or (ix) any specific action taken by the Company: (A) at the express written direction of Parent or Acquisition Sub as long as such action was taken in a manner consistent with such direction; or (B) that is required to be so taken by the terms of this Agreement as long as such action was taken in a manner consistent with such requirement (it being understood this clause “(ix)” shall not include any action or inaction by any Acquired Corporation that is pursuant to any of the covenants and obligations contained in Section 5.2 of this Agreement or that is conducted in the ordinary course of business)are very unlikely.

Company Material Adverse Effect. “No Company Material Adverse Effect shall have occurred and there shall exist no facts or circumstances that, individually or in the aggregate, are reasonably likely to have a Company Material Adverse Effect” shall mean any effect. For the purpose of this Section 7.2(d): (w) events, changefacts or circumstances need not constitute, developmentor be likely to constitute, event a breach of a representation or circumstance thatwarranty in order to have, considered together with all other effectsor be reasonably likely to have, changes, developments, events or circumstances, constitutes a material adverse effect on: (a) the business, financial condition or results of operations of the Acquired Corporations, taken as a whole; or (b) the ability of the Company to consummate the Offer, the Merger or any of the other Contemplated Transactions or to perform any of its obligations under this Agreement; provided, however, that with respect to clause “(a)” above, none of the following, either alone or in combination, shall be deemed to constitute a Company Material Adverse Effect Effect, (x) no materiality or knowledge qualification or standard contained in the representations and warranties shall not be taken into account in determining whether or not events, facts or circumstances, have, or are reasonably likely to have a Company Material Adverse Effect, (y) if a Designated Employee is subject to a "Covenant Against Competition" with the Seller, and such Designated Employee's employment with the Seller is terminated prior to the Closing, then such termination of employment or any impact on the Company resulting therefrom will not constitute a Company Material Adverse Effect has occurred or is so long as the Seller and DQE are complying with their obligations to use all actions reasonably expected necessary actions to occur): (i) adverse economic, business, financial, technological or regulatory conditions enforce the "Covenants Against Competition" set forth in the United States or agreements listed in other locations in which Section 3.10(c) of the Acquired Corporations have material operations Seller Disclosure Schedule, as contemplated by Section 6.17(a) of this Agreement, and (including changes in z) the securities markets and credit markets) that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (ii) adverse economic, business, financial, technological or regulatory conditions that generally affect the application and network performance management industry and that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (iii) changes in the stock price or trading volume inability of the Company Common Stock (it being understood, however, that, unless otherwise prohibited to own or operate its assets in materially the same manner as such assets are owned or operated by clauses “(i)” through “(ix)” of this proviso, the facts or circumstances giving rise to Company on the date hereof resulting specifically from any such change in stock price 45 law, rule or trading volume may regulation of any Governmental Authority, which change is made specifically in order to enhance or protect the safety and security of water and wastewater systems in light of concerns arising due to national or international occurrences, and which change applies generally to parties providing water and wastewater services for municipal utility districts and/or municipalities, will be taken into account in determining whether or not there has been is, or there is reasonably likely to be, a Company Material Adverse Effect); (iv) the failure of the Company to meet internal or securities analysts’ expectations or projections (it being understood, however, that, unless otherwise prohibited by clauses “(i)” through “(ix)” of this proviso, the facts or circumstances giving rise to any such failure may be taken into account in determining whether there has been a Company Material Adverse Effect); (v) any adverse effect, including loss of employees, customers or suppliers by the Company, arising from or otherwise predominately relating to the announcement, pendency or anticipated consummation of any of the Contemplated Transactions; (vi) any adverse effect arising from or otherwise related to changes in Legal Requirements or applicable accounting regulations or principles or interpretations thereof that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (vii) any outbreak or escalation of hostilities, declared or undeclared acts of war or terrorism or any natural disaster, in each case, after the date hereof, that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (viii) any shareholder class action or derivative litigation commenced against the Company since the date of this Agreement and arising from allegations of breach of fiduciary duty of the Company’s directors relating to their approval of this Agreement or from allegations of false or misleading public disclosure by the Company with respect to this Agreement; or (ix) any specific action taken by the Company: (A) at the express written direction of Parent or Acquisition Sub as long as such action was taken in a manner consistent with such direction; or (B) that is required to be so taken by the terms of this Agreement as long as such action was taken in a manner consistent with such requirement (it being understood this clause “(ix)” shall not include any action or inaction by any Acquired Corporation that is pursuant to any of the covenants and obligations contained in Section 5.2 of this Agreement or that is conducted in the ordinary course of business).

Company Material Adverse Effect. “Company Material Adverse Effect” shall mean any effect, change, development, event or circumstance that, considered together with all other effects, changes, developments, events or circumstances, constitutes a material is or would reasonably be expected to be materially adverse effect onto: (a) the business, condition (financial condition or otherwise), assets, liabilities or results of operations of the Acquired Corporations taken as a whole, excluding any such effect, change, event or circumstance resulting from or arising out of (i) any adverse effect (including any loss of or adverse change in the relationship of the Acquired Corporations with their respective employees, customers, distributors, licensors, partners, suppliers or similar relationship) arising out of or related to the announcement or pendency of the Merger, (ii) general economic market conditions (including acts of terrorism or war) that do not disproportionately affect the Acquired Corporations, taken as a whole, relative to other participants in the industry in which the Acquired Corporations operate, (iii) general conditions in the industry in which the Acquired Corporations operate that do not disproportionately affect the Acquired Corporations, taken as a whole, relative to other participants in the industry in which the Acquired Corporations operate, (iv) any changes (after the date hereof) in GAAP or applicable laws that do not disproportionately affect the Acquired Corporations, taken as a whole, relative to other participants in the industry in which the Acquired Corporations operate, (v) any failure of the Acquired Corporations to take any action as a result of restrictions or other prohibitions pursuant to this Agreement, (vi) any failure of the Company to meet internal or analysts’ expectations or projections (provided that the underlying cause of any such failure may be considered in determining whether there has been a Company Material Adverse Effect), (vii) any change in the market price or trading volume of the Company Common Stock, in and of itself, or the Nasdaq generally (provided that the underlying cause of any such change may be considered in determining whether there has been a Company Material Adverse Effect); (viii) any Proceeding made or brought by any third party (including any Company stockholder on such holder’s own behalf or on behalf of the Company) arising out of or related to this Agreement or any of the transactions contemplated hereby, or (ix) the taking of any action, or failure to take action, to which Parent has consented or approved in writing; (b) the ability of the Company to consummate the Offer, the Merger or any of the other Contemplated Transactions or to perform any of its covenants or obligations under this Agreement; provided, however, that with respect to clause “(a)” above, none of the following, either alone or in combination, shall be deemed to constitute a Company Material Adverse Effect (and shall not be taken into account in determining whether a Company Material Adverse Effect has occurred or is reasonably expected to occur): (i) adverse economic, business, financial, technological or regulatory conditions in the United States or in other locations in which the Acquired Corporations have material operations (including changes in the securities markets and credit markets) that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (ii) adverse economic, business, financial, technological or regulatory conditions that generally affect the application and network performance management industry and that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (iii) changes in the stock price or trading volume of the Company Common Stock (it being understood, however, that, unless otherwise prohibited by clauses “(i)” through “(ix)” of this proviso, the facts or circumstances giving rise to any such change in stock price or trading volume may be taken into account in determining whether there has been a Company Material Adverse Effect); (iv) the failure of the Company to meet internal or securities analysts’ expectations or projections (it being understood, however, that, unless otherwise prohibited by clauses “(i)” through “(ix)” of this proviso, the facts or circumstances giving rise to any such failure may be taken into account in determining whether there has been a Company Material Adverse Effect); (v) any adverse effect, including loss of employees, customers or suppliers by the Company, arising from or otherwise predominately relating to the announcement, pendency or anticipated consummation of any of the Contemplated Transactions; (vi) any adverse effect arising from or otherwise related to changes in Legal Requirements or applicable accounting regulations or principles or interpretations thereof that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (vii) any outbreak or escalation of hostilities, declared or undeclared acts of war or terrorism or any natural disaster, in each case, after the date hereof, that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (viii) any shareholder class action or derivative litigation commenced against the Company since the date of this Agreement and arising from allegations of breach of fiduciary duty of the Company’s directors relating to their approval of this Agreement or from allegations of false or misleading public disclosure by the Company with respect to this Agreement; or (ixc) any specific action taken by the Company: (A) at the express written direction of Parent Parent’s ability to vote, transfer, receive dividends with respect to or Acquisition Sub as long as such action was taken in a manner consistent otherwise exercise ownership rights with such direction; or (B) that is required to be so taken by the terms of this Agreement as long as such action was taken in a manner consistent with such requirement (it being understood this clause “(ix)” shall not include any action or inaction by any Acquired Corporation that is pursuant respect to any of the covenants and obligations contained in Section 5.2 stock of this Agreement or that is conducted in the ordinary course of business)Surviving Corporation.

Company Material Adverse Effect. “Company Material Adverse Effect” shall mean any effectEffect that (i) is, changeor would reasonably be expected to be, development, event individually or circumstance that, considered together in the aggregate with all other effectsEffects, changes, developments, events or circumstances, constitutes a material materially adverse effect on: (a) to the business, properties, financial condition condition, assets and Liabilities, operations or results of operations of the Acquired CorporationsCompany and its Subsidiaries, taken as a whole; , or (bii) would or would reasonably be expected to, prevent, materially delay or materially impair the ability of the Company to consummate the Offer, the Merger or any of the other Contemplated Transactions or to perform any of its material obligations under this Agreement; provided, however, that with respect to that, in the case of clause “(ai)” above, none of the following, either alone or in combination, following Effects shall be deemed to constitute a Company Material Adverse Effect (and nor shall not be taken into account in determining whether there is a Company Material Adverse Effect has occurred Effect: (a) changes affecting the economies or is reasonably expected to occur): (i) adverse economic, general business, financial, technological economic or regulatory conditions of or financial, credit or capital market conditions anywhere in the United States or in other locations world in which the Acquired Corporations have material operations (including Company and its Subsidiaries operate, to the extent such changes in the securities markets and credit markets) that do not disproportionately adversely affect the Acquired CorporationsCompany and its Subsidiaries, taken as a whole whole, in a materially disproportionate manner relative to the other companies similarly situated participants in the application industry in which the Company and network performance management industryits Subsidiaries operate; (ii) adverse economic, business, financial, technological or regulatory conditions that generally affect the application and network performance management industry and that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (iiib) changes in the stock price trading volume or trading volume price of the Company Common Stock in and of itself (it being understood, however, that, unless otherwise prohibited by clauses “(i)” through “(ix)” of this proviso, provided that the facts or and circumstances giving rise to any such change changes in stock such volume or price or trading volume may be deemed to constitute, and may be taken into account in determining whether there has been is a Company Material Adverse Effect); , (ivc) changes in the industry in which the Company and its Subsidiaries operate, to the extent such changes do not adversely affect the Company and its Subsidiaries, taken as a whole, in a materially disproportionate manner relative to other similarly situated participants in the industry in which the Company and its Subsidiaries operate, (d) national or international political conditions, acts of war (whether or not declared), the commencement, continuation or escalation of a war, acts of armed hostility, sabotage or terrorism or other international or national calamity or any material worsening of such conditions threatened or existing as of the Agreement Date, (e) changes in Law or GAAP (or in the interpretation thereof), (f) any failure of by the Company to meet any published analyst projections, estimates or expectations of the Company’s past or projected revenue, earnings or other financial performance or results of operations for any period, in and of itself, and any resulting analyst downgrade of the Company’s securities, or any failure by the Company to meet its internal budgets, plans or securities analysts’ expectations forecasts of its revenues, earnings or projections other financial performance or results of operations, in and of itself (it being understood, however, that, unless otherwise prohibited by clauses “(i)” through “(ix)” of this proviso, provided that the facts or and circumstances giving rise to any such failure failures may be deemed to constitute, and may be taken into account in determining whether there has been is a Company Material Adverse Effect); , (vg) any adverse effect, including loss of employees, customers legal or suppliers related Proceedings made or brought by the Company, arising from or otherwise predominately relating to the announcement, pendency or anticipated consummation of any of the Contemplated Transactions; current or former stockholders of the Company (vion their own behalf or on behalf of the Company) any adverse effect arising from or otherwise related to changes in Legal Requirements or applicable accounting regulations or principles or interpretations thereof that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (vii) any outbreak or escalation of hostilities, declared or undeclared acts of war or terrorism or any natural disaster, in each case, after the date hereof, that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (viii) any shareholder class action or derivative litigation commenced against the Company since or the date of this Agreement and Company Board, relating to, in connection with, or arising from allegations of breach of fiduciary duty out of the Company’s directors relating Merger or the other Transactions, including the Joint Proxy Statement/Prospectus, (h) any Effects to their approval the extent attributable to the execution, announcement or pendency of this Agreement or the anticipated consummation of the Merger (including the identity of Parent as the acquirer of the Company), or any leaks or rumors related thereto, including the impact thereof on relationships, contractual or otherwise, with officers, employees, customers, suppliers, distributors, vendors, licensors, licensees, lenders, investors, subcontractors or partners, (i) fires, epidemics, quarantine restrictions, earthquakes, hurricanes, tornadoes or other natural disasters, and (j) any Effects resulting from allegations or arising out of false or misleading public disclosure (1) the failure by the Company with respect or any of its Subsidiaries to take any action prohibited by this Agreement; Agreement or (ix2) any specific action actions taken by the Company: (A) at Company or any of its Subsidiaries as required by this Agreement or with the express written direction consent of Parent or Acquisition Sub as long as such action was taken in a manner consistent with such direction; or (B) that is required to be so taken by the terms of this Agreement as long as such action was taken in a manner consistent with such requirement (it being understood this clause “(ix)” shall not include any action or inaction by any Acquired Corporation that is pursuant to any of the covenants and obligations contained in Section 5.2 of this Agreement or that is conducted in the ordinary course of business)Merger Subs.

Company Material Adverse Effect. The term “Company Material Adverse Effect” shall mean any effectevent, change, developmentcircumstance, event effect or circumstance that, considered together with all other effects, changes, developments, events or circumstances, constitutes a material state of facts that is materially adverse effect on: (a) to the business, operations, financial condition or results of operations of the Acquired CorporationsCompany and the Division Entities, taken as a wholewhole but excluding the Seller Excluded Businesses; provided, that no event, change, circumstance, effect or state of facts shall be deemed (bindividually or in the aggregate) the ability to constitute, nor shall any of the foregoing be taken into account in determining whether there has been, a Company Material Adverse Effect, to consummate the Offerextent that such event, change, circumstance, effect or state of facts results from, arises out of, or relates to (i) a deterioration in the Merger economy or in the economic conditions generally affecting the industry in which the Company or any of the other Contemplated Transactions Division Entities operates or to perform generally affecting the economy or the financial, debt, credit, or securities markets in the United States or elsewhere, (ii) any change in applicable Legal Requirements, GAAP or accounting requirements or principles, (iii) the announcement or the existence of, or compliance with, this Agreement or the announcement of the transactions contemplated by this Agreement or any of its obligations under this Agreement; providedthe Ancillary Agreements, however, that with respect to clause “(a)” above, none iv) the failure of the followingCompany or any of the Division Entities to meet any expected or projected financial or operating performance target (provided that the event, either alone change, circumstance, effect or in combination, shall state of facts giving rise to such failure may (except as provided above) be deemed to constitute a Company Material Adverse Effect (and shall not be taken into account considered in determining whether a Company Material Adverse Effect has occurred or is reasonably expected to occur): (i) adverse economicoccurred), business, financial, technological or regulatory conditions in the United States or in other locations in which the Acquired Corporations have material operations (including changes in the securities markets and credit markets) that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (ii) adverse economic, business, financial, technological or regulatory conditions that generally affect the application and network performance management industry and that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (iii) changes in the stock price or trading volume of the Company Common Stock (it being understood, however, that, unless otherwise prohibited by clauses “(i)” through “(ix)” of this proviso, the facts or circumstances giving rise to any such change in stock price or trading volume may be taken into account in determining whether there has been a Company Material Adverse Effect); (iv) the failure of the Company to meet internal or securities analysts’ expectations or projections (it being understood, however, that, unless otherwise prohibited by clauses “(i)” through “(ix)” of this proviso, the facts or circumstances giving rise to any such failure may be taken into account in determining whether there has been a Company Material Adverse Effect); (v) any adverse effectaction taken or omitted to be taken that (A) is required to be taken or omitted by Seller, including loss of employees, customers or suppliers by the Company, arising from the Division Entities or otherwise predominately relating to the announcement, pendency or anticipated consummation of any of their respective Subsidiaries under this Agreement or (B) is by or at the Contemplated Transactions; written request or with the written consent of Buyer (vi) any adverse effect arising from fees or otherwise related to changes expenses incurred in Legal Requirements or applicable accounting regulations or principles or interpretations thereof that do not disproportionately affect connection with the Acquired Corporationstransactions contemplated by this Agreement, taken as a whole relative to the other companies in the application and network performance management industry; (vii) any outbreak or escalation acts of war, armed hostilities, declared sabotage or undeclared terrorism, or any escalation or worsening of any such acts of war war, armed hostilities, sabotage or terrorism threatened or any natural disaster, in each case, after the date hereof, that do not disproportionately affect the Acquired Corporations, taken underway as a whole relative to the other companies in the application and network performance management industry; (viii) any shareholder class action or derivative litigation commenced against the Company since of the date of this Agreement and arising from allegations of breach of fiduciary duty of the Company’s directors relating to their approval of this Agreement or from allegations of false or misleading public disclosure by the Company with respect to this Agreement; or (ixviii) the effect of any specific action taken by the Company: (A) at the express written direction of Parent or Acquisition Sub as long as such action was taken in a manner consistent with such direction; or (B) that matter which is required to be so taken by the terms of this Agreement as long as such action was taken in a manner consistent with such requirement (it being understood this clause “(ix)” shall not include any action or inaction by any Acquired Corporation that is pursuant to any of the covenants and obligations contained in Section 5.2 of this Agreement or that is conducted specifically disclosed in the ordinary course of business)Seller Disclosure Schedule.

Company Material Adverse Effect. “Company Material Adverse Effect” shall mean any effect, change, developmentclaim, event or circumstance (each, an “Effect”) that, considered together with all other effectsEffects, changesis or would reasonably be expected to be or to become materially adverse to, developments, events or circumstances, constitutes has or would reasonably be expected to have or result in a material adverse effect on: (a) the business, condition, operations or financial condition or results of operations performance of the Acquired Corporations, Corporations taken as a whole, other than: (i) any such Effect resulting from conditions generally affecting the global economy as a whole or the industry in which the Acquired Corporations operate, in each case to the extent that such conditions do not have a disproportionate impact on the Acquired Corporations; or (ii) any such Effect resulting from the failure to generate revenues from the sale of any Company Product to any Person who is a current customer of the Acquired Corporations (including as a result of the cancellation or termination of any product order or contract by such Person), which failure to generate revenues does not arise from or relate to any actual or alleged: (A) bug, defect, deficiency or Encumbrance in (or with respect to) any Company Product, Company Product Software or Company IP; (B) breach (or fact or circumstance that would reasonably be expected to give rise to a breach) of any Company Contract by any Acquired Corporation; or (C) violation of or failure to comply with any Legal Requirement by any Acquired Corporation or any Company Associate (it being acknowledged and agreed that a failure to generate revenues that arises from or relates to an actual or alleged event, fact or circumstance described in the immediately preceding clauses (A), (B) and (C) shall not be deemed to be a Company Material Adverse Effect unless it is an Effect that would otherwise constitute a Company Material Adverse Effect in the absence of this clause (ii)); (b) the ability of the Company to consummate the Offer, the Merger or any of the other Contemplated Transactions or to perform any of its covenants or obligations under this Agreement; provided, however, that with respect to clause “(a)” above, none of the following, either alone or in combination, shall be deemed to constitute a Company Material Adverse Effect (and shall not be taken into account in determining whether a Company Material Adverse Effect has occurred or is reasonably expected to occur): (i) adverse economic, business, financial, technological or regulatory conditions in the United States or in other locations in which the Acquired Corporations have material operations (including changes in the securities markets and credit markets) that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (ii) adverse economic, business, financial, technological or regulatory conditions that generally affect the application and network performance management industry and that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (iii) changes in the stock price or trading volume of the Company Common Stock (it being understood, however, that, unless otherwise prohibited by clauses “(i)” through “(ix)” of this proviso, the facts or circumstances giving rise to any such change in stock price or trading volume may be taken into account in determining whether there has been a Company Material Adverse Effect); (iv) the failure of the Company to meet internal or securities analysts’ expectations or projections (it being understood, however, that, unless otherwise prohibited by clauses “(i)” through “(ix)” of this proviso, the facts or circumstances giving rise to any such failure may be taken into account in determining whether there has been a Company Material Adverse Effect); (v) any adverse effect, including loss of employees, customers or suppliers by the Company, arising from or otherwise predominately relating to the announcement, pendency or anticipated consummation of any of the Contemplated Transactions; (vi) any adverse effect arising from or otherwise related to changes in Legal Requirements or applicable accounting regulations or principles or interpretations thereof that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (vii) any outbreak or escalation of hostilities, declared or undeclared acts of war or terrorism or any natural disaster, in each case, after the date hereof, that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (viii) any shareholder class action or derivative litigation commenced against the Company since the date of this Agreement and arising from allegations of breach of fiduciary duty of the Company’s directors relating to their approval of this Agreement or from allegations of false or misleading public disclosure by the Company with respect to this Agreement; or (ixc) any specific action taken by the Company: (A) at the express written direction ability of Parent to vote, transfer, receive dividends with respect to or Acquisition Sub as long as such action was taken in a manner consistent otherwise exercise ownership rights with such direction; or (B) that is required respect to be so taken by the terms of this Agreement as long as such action was taken in a manner consistent with such requirement (it being understood this clause “(ix)” shall not include any action or inaction by any Acquired Corporation that is pursuant to any stock of the covenants and obligations contained in Section 5.2 of this Agreement or that is conducted in the ordinary course of business)Surviving Corporation.

Company Material Adverse Effect. “Company Material Adverse Effect” shall mean any effect, change, development, event or circumstance that, considered together with all other effects, changes, developments, events or circumstances, constitutes is or could reasonably be expected to be or to become materially adverse to, or has or could reasonably be expected to have or result in a material adverse effect on: , (a) the business, condition (financial condition or otherwise), assets (including Intellectual Property) or results of operations of the Acquired Corporations, taken as a whole; or , (b) the ability of the Company to consummate the Offer, the Merger or any of the other Contemplated Transactions or to perform any of its obligations under this the Agreement, (c) the ability of Parent or Acquisition Sub (i) to acquire, or deliver any consideration in exchange for, shares of Company Common Stock pursuant to the Offer, (ii) to consummate the Merger or any of the other Contemplated Transactions and the Stockholder Agreements or (iii) to enforce any of its rights or to perform any of its covenants under the Agreement or the Stockholder Agreements, or (d) Parent’s ability to hold, transfer, vote, receive dividends with respect to or otherwise exercise ownership rights with respect to any shares of the stock of Acquisition Sub or the Surviving Corporation; provided, however, that with respect to clause “(a)” abovea particular effect, none change, event or circumstance shall not, in and of the followingitself, either alone or in combination, shall be deemed to constitute a Company Material Adverse Effect Effect: (and shall 1) if such effect, change, event or circumstance resulted directly from general economic or industry conditions that do not be taken into account in determining whether a Company Material Adverse Effect has occurred or is reasonably expected to occur): (i) adverse economic, business, financial, technological or regulatory conditions in the United States or in other locations in which affect the Acquired Corporations have material operations (including changes in the securities markets and credit markets) that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industrydisproportionate manner; (ii2) adverse economicif (A) such effect, businesschange, financial, technological event or regulatory conditions that generally affect circumstance resulted directly and exclusively from the application and network performance management industry and that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (iii) changes in the stock price or trading volume resignation of employees of the Company Common Stock (it being understoodother than Fu-Xxxxx Xxx, however, that, unless otherwise prohibited Wing Xx Xxxxx and engineers employed by clauses “the Acquired Corporations as of the date of the Agreement) and (i)” through “(ix)” of this proviso, the facts or circumstances giving rise to any such change in stock price or trading volume may be taken into account in determining whether there has been a Company Material Adverse Effect); (ivB) the failure of Company conclusively proves that such resignation would not have occurred if the Company to meet internal Offer had never been announced and that such resignation would not have occurred if the Offer were being made by a Person unaffiliated with Parent, or securities analysts’ expectations or projections (it being understood, however, that, unless otherwise prohibited by clauses “3) if (i)” through “(ix)” of this proviso, the facts or circumstances giving rise to any A) such failure may be taken into account in determining whether there has been a Company Material Adverse Effect); (v) any adverse effect, including loss change, event or circumstance resulted directly and exclusively from the termination by any customer of employees, customers or suppliers by the Company, arising from or otherwise predominately relating to the announcement, pendency or anticipated consummation of its customer relationship with any of the Contemplated Transactions; (vi) any adverse effect arising from or otherwise related to changes in Legal Requirements or applicable accounting regulations or principles or interpretations thereof that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application Corporations and network performance management industry; (vii) any outbreak or escalation of hostilities, declared or undeclared acts of war or terrorism or any natural disaster, in each case, after the date hereof, that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (viii) any shareholder class action or derivative litigation commenced against the Company since the date of this Agreement and arising from allegations of breach of fiduciary duty of the Company’s directors relating to their approval of this Agreement or from allegations of false or misleading public disclosure by the Company with respect to this Agreement; or (ix) any specific action taken by the Company: (A) at the express written direction of Parent or Acquisition Sub as long as such action was taken in a manner consistent with such direction; or (B) the Company conclusively proves that is required to be so taken such termination would not have occurred if the Offer had never been announced and that such termination would not have occurred if the Offer were being made by the terms of this Agreement as long as such action was taken in a manner consistent Person unaffiliated with such requirement (it being understood this clause “(ix)” shall not include any action or inaction by any Acquired Corporation that is pursuant to any of the covenants and obligations contained in Section 5.2 of this Agreement or that is conducted in the ordinary course of business)Parent.

Company Material Adverse Effect. “No Company Material Adverse Effect shall have occurred and there shall exist no facts or circumstances that, individually or in the aggregate, are reasonably likely to have a Company Material Adverse Effect” shall mean any effect. For the purpose of this Section 7.2(d): (w) events, changefacts or circumstances need not constitute, developmentor be likely to constitute, event a breach of a representation or circumstance thatwarranty in order to have, considered together with all other effectsor be reasonably likely to have, changes, developments, events or circumstances, constitutes a material adverse effect on: (a) the business, financial condition or results of operations of the Acquired Corporations, taken as a whole; or (b) the ability of the Company to consummate the Offer, the Merger or any of the other Contemplated Transactions or to perform any of its obligations under this Agreement; provided, however, that with respect to clause “(a)” above, none of the following, either alone or in combination, shall be deemed to constitute a Company Material Adverse Effect Effect, (x) no materiality or knowledge qualification or standard contained in the representations and warranties shall not be taken into account in determining whether or not events, facts or circumstances, have, or are reasonably likely to have a Company Material Adverse Effect, (y) if a Designated Employee is subject to a "Covenant Against Competition" with the Seller, and such Designated Employee's employment with the Seller is terminated prior to the Closing, then such termination of employment or any impact on the Company resulting therefrom will not constitute a Company Material Adverse Effect has occurred or is so long as the Seller and DQE are complying with their obligations to use all actions reasonably expected necessary actions to occur): (i) adverse economic, business, financial, technological or regulatory conditions enforce the "Covenants Against Competition" set forth in the United States or agreements listed in other locations in which Section 3.10(c) of the Acquired Corporations have material operations Seller Disclosure Schedule, as contemplated by Section 6.17(a) of this Agreement, and (including changes in z) the securities markets and credit markets) that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (ii) adverse economic, business, financial, technological or regulatory conditions that generally affect the application and network performance management industry and that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (iii) changes in the stock price or trading volume inability of the Company Common Stock (it being understood, however, that, unless otherwise prohibited to own or operate its assets in materially the same manner as such assets are owned or operated by clauses “(i)” through “(ix)” of this proviso, the facts or circumstances giving rise to Company on the date hereof resulting specifically from any such change in stock price law, rule or trading volume may regulation of any Governmental Authority, which change is made specifically in order to enhance or protect the safety and security of water and wastewater systems in light of concerns arising due to national or international occurrences, and which change applies generally to parties providing water and wastewater services for municipal utility districts and/or municipalities, will be taken into account in determining whether or not there has been is, or there is reasonably likely to be, a Company Material Adverse Effect); (iv) the failure of the Company to meet internal or securities analysts’ expectations or projections (it being understood, however, that, unless otherwise prohibited by clauses “(i)” through “(ix)” of this proviso, the facts or circumstances giving rise to any such failure may be taken into account in determining whether there has been a Company Material Adverse Effect); (v) any adverse effect, including loss of employees, customers or suppliers by the Company, arising from or otherwise predominately relating to the announcement, pendency or anticipated consummation of any of the Contemplated Transactions; (vi) any adverse effect arising from or otherwise related to changes in Legal Requirements or applicable accounting regulations or principles or interpretations thereof that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (vii) any outbreak or escalation of hostilities, declared or undeclared acts of war or terrorism or any natural disaster, in each case, after the date hereof, that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (viii) any shareholder class action or derivative litigation commenced against the Company since the date of this Agreement and arising from allegations of breach of fiduciary duty of the Company’s directors relating to their approval of this Agreement or from allegations of false or misleading public disclosure by the Company with respect to this Agreement; or (ix) any specific action taken by the Company: (A) at the express written direction of Parent or Acquisition Sub as long as such action was taken in a manner consistent with such direction; or (B) that is required to be so taken by the terms of this Agreement as long as such action was taken in a manner consistent with such requirement (it being understood this clause “(ix)” shall not include any action or inaction by any Acquired Corporation that is pursuant to any of the covenants and obligations contained in Section 5.2 of this Agreement or that is conducted in the ordinary course of business).

Company Material Adverse Effect. “Company Material Adverse Effect” shall mean any effect, change, development, event or circumstance an effect that, considered together individually or considered collectively (without duplication) with all other such effects, changes, developments, events or circumstances, constitutes a material is materially adverse effect on: (a) to the business, condition (financial condition or otherwise) or results of operations of the Acquired CorporationsCompany and its Subsidiaries, taken as a whole; or (b) the ability of the Company to consummate the Offer, the Merger or any of the other Contemplated Transactions or to perform any of its obligations under this Agreement; provided, however, that with respect to clause “(a)” above, none of the following, following shall be deemed either alone or in combinationcombination to constitute, shall be deemed to constitute a Company Material Adverse Effect (and shall not be taken into account in determining whether a Company Material Adverse Effect has occurred or is reasonably expected to occur): (i) adverse economic, business, financial, technological or regulatory conditions in the United States or in other locations in which the Acquired Corporations have material operations (including changes in the securities markets and credit markets) that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (ii) adverse economic, business, financial, technological or regulatory conditions that generally affect the application and network performance management industry and that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (iii) changes in the stock price or trading volume none of the Company Common Stock (it being understood, however, that, unless otherwise prohibited by clauses “(i)” through “(ix)” of this proviso, the facts or circumstances giving rise to any such change in stock price or trading volume may following shall be taken into account in determining whether there has been or would be, a Company Material Adverse Effect: (A) any adverse effect that results from general economic, business, financial or market conditions; (B) any adverse effect attributable to conditions affecting any of the industries or industry sectors in which the Company or any of its Subsidiaries operates (except to the extent that the Company or its Subsidiaries are adversely affected disproportionately relative to the other participants in such industries or industry sectors); (ivC) any adverse effect arising from or otherwise relating to fluctuations in the value of any currency; (D) any adverse effect arising from or otherwise relating to any act of terrorism, war, national or international calamity or any other similar event; (E) any adverse effect (including any loss of employees or any cancellation of or delay in customer orders) arising from or otherwise relating to the announcement or pendency of the Agreement, the Offer or the Merger (including stockholder litigation in connection therewith); (F) any adverse effect arising from or otherwise relating to actions taken by the Company or any of its Subsidiaries pursuant to the Company’s obligations under the Agreement or taken at the direction of Parent or Acquisition Sub; (G) any adverse effect arising from or otherwise relating to changes in GAAP; (H) any adverse effect with respect to which a reserve has been established on the April Balance Sheet (to the extent of the amount of such reserve); (I) any adverse effect that is of a type not requiring the establishment of a reserve on the April Balance Sheet and that would reasonably be expected to arise from any matter described in or incorporated by reference in the Company Disclosure Schedule; (J) any adverse effect arising from or otherwise relating to any agreement to enter into, or the implementation of, an Agreed Arrangement; (K) any adverse effect arising from or otherwise relating to any modification to any of the CT Contracts that eliminates or limits any of the Company’s exclusivity rights thereunder or any other event that has the effect of eliminating or limiting such rights; (L) any seasonal reduction in revenues or earnings that is of a magnitude consistent with prior periods; or (M) the failure of the Company to meet internal or securities analysts’ expectations or projections (it being understood, however, that, unless otherwise prohibited by clauses “provided that (i)” through “) shortfalls in financial results which result in such missed expectations or projections, and (ix)” ii) the underlying causes of this proviso, the facts or circumstances giving rise to any such failure shortfalls, may in each case, individually or when aggregated with other effects, qualify as a “Company Material Adverse Effect”). For purposes of the Agreement, any termination of the CT Contracts by CT as a result of a breach of the CT Contracts by the Company will be taken into account in determining whether there has been deemed to have a Company Material Adverse EffectEffect if such termination is reasonably likely to have a Company Material Adverse Effect (disregarding, solely for purposes of this sentence, clauses “(E); ” and “(v) any adverse effect, including loss F)” of employees, customers or suppliers by the Company, arising from or otherwise predominately relating proviso to the announcement, pendency or anticipated consummation of any of the Contemplated Transactions; (vi) any adverse effect arising from or otherwise related to changes in Legal Requirements or applicable accounting regulations or principles or interpretations thereof that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (vii) any outbreak or escalation of hostilities, declared or undeclared acts of war or terrorism or any natural disaster, in each case, after the date hereof, that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (viii) any shareholder class action or derivative litigation commenced against the Company since the date of this Agreement and arising from allegations of breach of fiduciary duty of the Company’s directors relating to their approval of this Agreement or from allegations of false or misleading public disclosure by the Company with respect to this Agreement; or (ix) any specific action taken by the Company: (A) at the express written direction of Parent or Acquisition Sub as long as such action was taken in a manner consistent with such direction; or (B) that is required to be so taken by the terms of this Agreement as long as such action was taken in a manner consistent with such requirement (it being understood this clause “(ix)” shall not include any action or inaction by any Acquired Corporation that is pursuant to any of the covenants and obligations contained in Section 5.2 of this Agreement or that is conducted in the ordinary course of businesspreceding sentence).

Company Material Adverse Effect. “Company Material Adverse Effect” shall mean any adverse event, condition, effect, change, developmentevent, event development or circumstance (each, an “Effect”) that, individually or when considered together with all other effectsEffects, changes, developments, events or circumstances, constitutes would reasonably be expected to have a material adverse effect on: (a) the business, condition (financial condition or otherwise) or results of operations of the Acquired Corporations, Company and its Subsidiaries taken as a whole; provided, however, that, in no event shall any of the following, alone or in combination, be deemed to constitute, nor shall any of the following be taken into account in determining whether there has occurred, a Company Material Adverse Effect: (i) effects resulting from conditions generally affecting the industries in which the Company or its customers participate or the U.S. or global economy or capital markets as a whole, to the extent that such conditions do not have a disproportionate impact on the Company and its Subsidiaries taken as a whole; (ii) changes in the trading price or trading volume of Company Common Stock; (iii) effects resulting from the announcement (or pre-announcement disclosure), or pendency of the Merger and the Contemplated Transactions (including any cancellation of or delays in customer orders, any reduction in sales, any disruption in distributor, reseller, supplier, partner or similar relationships or any loss of employees); (iv) any failure by the Company to meet internal projections or forecasts or third party revenue or earnings predictions for any period ending (or for which revenues or earnings are released) on or after the date of this Agreement, in and of themselves (it being understood that the Effects giving rise or contributing to the failure to meet such projections, forecasts or predictions may be taken into account in determining whether there has been, or would reasonably be expected to be, a Company Material Adverse Effect), (v) stockholder class action or derivative litigation, or similar claims or actions, arising from allegations of breach of fiduciary duty relating to the Company entering into this Agreement or disclosure violations in the securities filings made in connection with the Merger; (vi) effects resulting from compliance with the terms of, or the taking of any action required by, this Agreement, including actions taken pursuant to Section 5.6; (vii) changes in applicable Legal Requirements or GAAP; or (viii) effects resulting directly from the items set forth on Part A of the Company Disclosure Schedule or (b) the ability of the Company to consummate the OfferMerger prior to the Initial End Date or, if applicable, the Merger or any of the other Contemplated Transactions or to perform any of its obligations under this Agreement; provided, however, that with respect to clause “(a)” above, none of the following, either alone or in combination, shall be deemed to constitute a Company Material Adverse Effect (and shall not be taken into account in determining whether a Company Material Adverse Effect has occurred or is reasonably expected to occur): (i) adverse economic, business, financial, technological or regulatory conditions in the United States or in other locations in which the Acquired Corporations have material operations (including changes in the securities markets and credit markets) that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (ii) adverse economic, business, financial, technological or regulatory conditions that generally affect the application and network performance management industry and that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (iii) changes in the stock price or trading volume of the Company Common Stock (it being understood, however, that, unless otherwise prohibited by clauses “(i)” through “(ix)” of this proviso, the facts or circumstances giving rise to any such change in stock price or trading volume may be taken into account in determining whether there has been a Company Material Adverse Effect); (iv) the failure of the Company to meet internal or securities analysts’ expectations or projections (it being understood, however, that, unless otherwise prohibited by clauses “(i)” through “(ix)” of this proviso, the facts or circumstances giving rise to any such failure may be taken into account in determining whether there has been a Company Material Adverse Effect); (v) any adverse effect, including loss of employees, customers or suppliers by the Company, arising from or otherwise predominately relating to the announcement, pendency or anticipated consummation of any of the Contemplated Transactions; (vi) any adverse effect arising from or otherwise related to changes in Legal Requirements or applicable accounting regulations or principles or interpretations thereof that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (vii) any outbreak or escalation of hostilities, declared or undeclared acts of war or terrorism or any natural disaster, in each case, after the date hereof, that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (viii) any shareholder class action or derivative litigation commenced against the Company since the date of this Agreement and arising from allegations of breach of fiduciary duty of the Company’s directors relating to their approval of this Agreement or from allegations of false or misleading public disclosure by the Company with respect to this Agreement; or (ix) any specific action taken by the Company: (A) at the express written direction of Parent or Acquisition Sub as long as such action was taken in a manner consistent with such direction; or (B) that is required to be so taken by the terms of this Agreement as long as such action was taken in a manner consistent with such requirement (it being understood this clause “(ix)” shall not include any action or inaction by any Acquired Corporation that is pursuant to any of the covenants and obligations contained in Section 5.2 of this Agreement or that is conducted in the ordinary course of business)Extended End Date.

Company Material Adverse Effect. “Company Material Adverse Effect” shall mean any effect, change, development, event or circumstance that, considered together with all other effects, changes, developments, events or circumstances, constitutes is or would reasonably be expected to have a material adverse effect on: (a) the business, condition (financial condition or otherwise) or results of operations of the Acquired Corporations, taken as a whole; or (b) the ability of the Company to consummate the Offer, the Merger or any of the other Contemplated Transactions or to perform any of its obligations under this Agreement; provided, however, that that, with respect to clause “(a)” above, none of the following, either alone or in combination, a change shall not be deemed to constitute a Company Material Adverse Effect (and shall not be taken into account in determining whether a Company Material Adverse Effect has occurred or is reasonably expected to occur): ) if such change results from: (i) adverse economic, businessfinancial and political conditions or acts of war, financialsabotage or terrorism (including any escalation or general worsening of any such acts of war, technological sabotage or regulatory conditions terrorism) in the United States or in other locations in the world in which the Acquired Corporations have material operations (including changes in the securities markets and credit markets) that do not disproportionately affect the Acquired Corporations, taken as a whole Corporations relative to the other companies participants in the application and network performance management industryindustry in which the Acquired Corporations operate; (ii) adverse economic, business, financial, technological or regulatory financial and political conditions that generally affect the application and network performance management industry in which the Acquired Corporations operate and that do not disproportionately affect the Acquired Corporations, taken as a whole Corporations relative to the other companies participants in the application and network performance management such industry; (iii) changes in the stock price or trading volume of the Company Common Stock (it being understood, however, that, unless otherwise prohibited by clauses “(i)” through “(ix)” of this proviso, that the facts or circumstances giving rise to any such change in stock price or trading volume may be taken into account in determining whether there has been a Company Material Adverse Effect); (iv) changes or prospective changes in applicable law, GAAP or accounting standards, or any changes or prospective changes in the failure interpretation or enforcement of any of the foregoing, in each case after the date hereof; (v) the announcement or pendency or consummation of the Merger or any of the other transactions contemplated by this Agreement, including the impact thereof on relationships, contractual or otherwise, with customers, suppliers, distributors, partners, employees, or Governmental Body (it being understood that this clause (v) shall not apply to any representation, warranty, covenant or agreement of the Company herein 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), (vi) any failure, in and of itself, by the Company and its Subsidiaries to meet any internal or securities analysts’ expectations published budgets, projections, forecasts or projections predictions of financial performance for any period, or any changes in the price or trading volume of the Company Common Stock (it being understood, however, that, unless otherwise prohibited by clauses “(i)” through “(ix)” of this proviso, that the facts or circumstances giving rise to any such failure may be taken into account in determining whether there has been a Company Material Adverse Effect); or (vvii) any adverse effect, including loss legal proceedings made or brought by any of employees, customers the current or suppliers by former stockholders of the Company (on their own behalf or on behalf of the Company) against the Company, arising from out of Merger or otherwise predominately relating to the announcement, pendency or anticipated consummation of in connection with any of the Contemplated Transactions; (vi) any adverse effect arising from or otherwise related to changes in Legal Requirements or applicable accounting regulations or principles or interpretations thereof that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (vii) any outbreak or escalation of hostilities, declared or undeclared acts of war or terrorism or any natural disaster, in each case, after the date hereof, that do not disproportionately affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management industry; (viii) any shareholder class action or derivative litigation commenced against the Company since the date of this Agreement and arising from allegations of breach of fiduciary duty of the Company’s directors relating to their approval of this Agreement or from allegations of false or misleading public disclosure by the Company with respect to this Agreement; or (ix) any specific action taken by the Company: (A) at the express written direction of Parent or Acquisition Sub as long as such action was taken in a manner consistent with such direction; or (B) that is required to be so taken by the terms of this Agreement as long as such action was taken in a manner consistent with such requirement (it being understood this clause “(ix)” shall not include any action or inaction by any Acquired Corporation that is pursuant to any of the covenants and obligations contained in Section 5.2 of this Agreement or that is conducted in the ordinary course of business).

Company Material Adverse Effect. “Company Material Adverse Effect” shall mean any effect, change, development, event or circumstance circumstance, condition or statement of fact that, considered together with all other effects, changes, developments, events or circumstances, constitutes conditions or statements of fact, has had or would reasonably be expected to have, individually or in the aggregate, a material adverse effect on: (a) the business, financial condition or condition, results of operations of the Acquired Corporations, taken as a whole; or (b) the ability of the Company to consummate the Offer, the Merger or any of the other Contemplated Transactions or to perform any of its obligations under this AgreementTransactions; provided, however, that with respect to clause “(a)” above, none of the following, either alone or in combination, shall be deemed to constitute a Company Material Adverse Effect (and shall not be taken into account in determining whether a Company Material Adverse Effect has occurred or is reasonably expected to occuroccurred): (i) adverse economic, business, financial, technological financial or regulatory conditions in the United States or in other locations in which the Acquired Corporations have material operations (including changes in the securities markets and credit markets) that do not disproportionately disproportionately, in a material respect, affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management semiconductor industry; (ii) adverse economic, business, financial, technological financial or regulatory conditions that generally affect the application and network performance management semiconductor industry and that do not disproportionately disproportionately, in a material respect, affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management semiconductor industry; (iii) changes in the stock price or trading volume of the Company Common Stock (it being understood, however, that, unless otherwise prohibited by clauses “(i)” through “(ixviii)” of this proviso, the facts or circumstances giving rise to any such change in stock price or trading volume may be taken into account in determining whether there has been a Company Material Adverse Effect); (iv) the failure of the Company to meet internal or securities analysts’ ' expectations or projections (it being understood, however, that, unless otherwise prohibited by clauses “(i)” through “(ixviii)” of this proviso, the facts or circumstances giving rise to any such failure may be taken into account in determining whether there has been a Company Material Adverse Effect); (v) any adverse effect, including loss of employees, customers or suppliers by the Company, arising from or otherwise predominately relating to the announcement, pendency or anticipated consummation of any of the Contemplated TransactionsTransactions (other than for purposes of the representation or warranties set forth in Section 3.9(g), Section 3.14(b) (last sentence), Section 3.16(j) and Section 3.24, but subject to the corresponding disclosures set forth in the Disclosure Schedule); (vi) any adverse effect arising from or otherwise related to changes in Legal Requirements or applicable accounting regulations or principles or interpretations thereof that do not disproportionately in a material respect affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management semiconductor industry; (vii) any outbreak or escalation of hostilities, declared or undeclared acts of war or terrorism or any natural disaster, in each case, after the date hereof, hereof that do not disproportionately disproportionately, in a material respect, affect the Acquired Corporations, taken as a whole relative to the other companies in the application and network performance management semiconductor industry; or (viii) any shareholder stockholder class action or derivative litigation commenced against the Company since the date of this Agreement and arising from allegations of breach of fiduciary duty of the Company’s 's directors relating to their approval of this Agreement or from allegations of false or misleading public disclosure by the Company with respect to this Agreement; or (ix) any specific action taken by the Company: (A) at the express written direction of Parent or Acquisition Sub as long as such action was taken in a manner consistent with such direction; or (B) that is required to be so taken by the terms of this Agreement as long as such action was taken in a manner consistent with such requirement (it being understood this clause “(ix)” shall not include any action or inaction by any Acquired Corporation that is pursuant to any of the covenants and obligations contained in Section 5.2 of this Agreement or that is conducted in the ordinary course of business).