Common use of Organization, Standing and Corporate Power Clause in Contracts

Organization, Standing and Corporate Power. (a) Each of the Company and its Subsidiaries is duly incorporated or organized, validly existing and in good standing (or equivalent status) under the applicable Law of the state or jurisdiction of its incorporation or organization. Each of the Company and its Subsidiaries has all requisite power and authority to own, lease and operate its properties and assets and to carry on its business as it is now being conducted and is duly licensed or qualified to do business and is in good standing (or equivalent status) as a foreign corporation or other entity in each jurisdiction in which the nature of the business or activities conducted by it or the character or location of the properties and assets owned, leased or operated by it requires such license or qualification, except where the failure to be so licensed, qualified or in good standing (or equivalent status) has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. For purposes of this Agreement, “Company Material Adverse Effect” shall mean any change, event, development, circumstance or occurrence (each, an “Effect”) that, individually or when taken together with all other Effects, (x) has a material adverse effect on the results of operations, condition (financial or otherwise), business or assets of the Company and its Subsidiaries, taken as a whole, or (y) a material adverse effect on the Company’s ability to perform its obligations, or consummate the Transactions, in accordance with the terms of this Agreement, provided, however, that in no event shall any of the following, either alone or in combination, be deemed to constitute, a Company Material Adverse Effect: (1) changes in conditions in the United States or global economy or capital or financial markets generally, including changes in interest or exchange rates; (2) any Effect caused by the announcement, pendency or performance of this Agreement, the consummation of the Transactions or the identity of Parent; (3) any change in the trading prices or trading volume of the Company Common Stock (provided that the exception in this clause (3) shall not prevent or otherwise affect a determination that any Effect underlying such change has resulted in, or contributed to, a Company Material Adverse Effect; (4) acts of war, sabotage or terrorism, or any escalation or worsening of any such acts of war, sabotage or terrorism; (5) earthquakes, hurricanes, floods or other natural disasters; (6) any Effect consisting of or to the extent resulting from any action taken by the Company or its Subsidiaries that is required by this Agreement; or (7) any change in the composition of the Company’s Board of Directors pursuant to Section 1.3(a); provided, however, that with respect to clauses (1), (4) and (5), such Effect does not have a materially disproportionate and adverse effect on the Company and its Subsidiaries, taken as a whole, relative to most other similarly situated, comparable companies and their respective subsidiaries, taken as a whole, in the industry in which the Company and its Subsidiaries operate; provided, further, that, any failure to meet internal or published projections, forecasts or revenue or earning predictions for any period shall not, in and of itself, constitute a Company Material Adverse Effect.

Organization, Standing and Corporate Power. (a) Each of the Company and each of its Subsidiaries (as defined below) is a corporation or other legal entity duly incorporated or organized, validly existing and in good standing (or equivalent status) under the applicable Law laws of the state jurisdiction in which it is organized and has the requisite corporate or jurisdiction of other power and authority, as the case may be, to carry on its incorporation or organizationbusiness as now being conducted. Each of the Company and each of its Subsidiaries has all requisite power and authority to own, lease and operate its properties and assets and to carry on its business as it is now being conducted and is duly qualified or licensed or qualified to do business and is in good standing (or equivalent status) as a foreign corporation or other entity in each jurisdiction in which the nature of the business or activities conducted by it or the character or location of the properties and assets property owned, leased or operated by it requires or the nature of the business conducted by it makes such license qualification or qualificationlicensing necessary, except other than in such jurisdictions where the failure to be so licensed, qualified or licensed and in good standing (or equivalent status) has not had and would not reasonably be expected to have, individually or in the aggregate) would not have, or be reasonably likely to have, a material adverse effect on the condition (financial or otherwise), business, assets, liabilities, prospects or results of operations of the Company and its Subsidiaries taken as a whole, excluding effects from general economic conditions, general securities market conditions, conditions affecting the Company's industry generally, or the announcement of this Agreement or the transactions contemplated hereby (a "Company Material Adverse Effect"). The Company has delivered or made available to Parent complete and correct copies of its Certificate of Incorporation and By-Laws and the Certificates of Incorporation and By-Laws or other comparable charter or organizational documents of its Subsidiaries, in each case as amended to the date of this Agreement. For purposes of this Agreement, “Company Material Adverse Effect” shall mean a "Subsidiary" of any change, event, development, circumstance or occurrence (eachperson means another person, an “Effect”) that, individually or when taken together with all other Effects, (x) has a material adverse effect on the results of operations, condition (financial or otherwise), business or assets amount of the Company and voting securities, other voting ownership or voting partnership interests of which is sufficient to elect at least a majority of its Subsidiaries, taken as a whole, or (y) a material adverse effect on the Company’s ability to perform its obligations, or consummate the Transactions, in accordance with the terms of this Agreement, provided, however, that in no event shall any of the following, either alone or in combination, be deemed to constitute, a Company Material Adverse Effect: (1) changes in conditions in the United States or global economy or capital or financial markets generally, including changes in interest or exchange rates; (2) any Effect caused by the announcement, pendency or performance of this Agreement, the consummation of the Transactions or the identity of Parent; (3) any change in the trading prices or trading volume of the Company Common Stock (provided that the exception in this clause (3) shall not prevent or otherwise affect a determination that any Effect underlying such change has resulted in, or contributed to, a Company Material Adverse Effect; (4) acts of war, sabotage or terrorism, or any escalation or worsening of any such acts of war, sabotage or terrorism; (5) earthquakes, hurricanes, floods or other natural disasters; (6) any Effect consisting of or to the extent resulting from any action taken by the Company or its Subsidiaries that is required by this Agreement; or (7) any change in the composition of the Company’s Board of Directors pursuant to Section 1.3(a)or other governing body (or, if there are no such voting interests, 50% or more of the equity interests of which) is owned directly or indirectly by such first person; providedand a "person" means an individual, howevercorporation, that with respect to clauses (1)partnership, (4) and (5)limited liability company, such Effect does not have a materially disproportionate and adverse effect on the Company and its Subsidiariesjoint venture, taken as a wholeassociation, relative to most trust, unincorporated organization or other similarly situated, comparable companies and their respective subsidiaries, taken as a whole, in the industry in which the Company and its Subsidiaries operate; provided, further, that, any failure to meet internal or published projections, forecasts or revenue or earning predictions for any period shall not, in and of itself, constitute a Company Material Adverse Effectentity.

Organization, Standing and Corporate Power. (a) Each of the The Company and its Subsidiaries is a corporation duly incorporated or organized, validly existing and in good standing (or equivalent status) under the applicable Law Laws of the state or jurisdiction State of its incorporation or organizationTexas. Each of the The Company and its Subsidiaries has all requisite corporate power and authority necessary to own, own or lease and operate all of its properties and assets and to carry on its business as it is now being conducted and is duly licensed or qualified to do business and is in good standing (or equivalent status) as a foreign corporation or other entity in each jurisdiction in which the nature of the business or activities conducted by it or the character or location of the properties and assets owned, owned or leased or operated by it requires makes such license licensing or qualificationqualification necessary, except where the failure to be so licensed, qualified or in good standing (or equivalent status) ), individually or in the aggregate, has not had and would not reasonably be expected to have, individually or in have a Material Adverse Effect (as defined below) on the aggregate, a Company (“Company Material Adverse Effect”). For purposes of this Agreement, “Company Material Adverse Effect” shall mean mean, with respect to any party, any change, event, development, circumstance development or occurrence that is materially adverse to (each, an “Effect”A) that, individually the ability of such party to timely consummate the Transactions or when taken together with all other Effects, (xB) has a material adverse effect on the results of operations, financial condition (financial or otherwise), business or assets of the Company such party and its Subsidiaries, Subsidiaries taken as a whole, other than changes, events, developments or occurrences arising out of, resulting from or attributable to (y) a material adverse effect on the Company’s ability to perform its obligations, or consummate the Transactions, in accordance with the terms of this Agreement, provided, however, that in no event shall any of the following, either alone or in combination, be deemed to constitute, a Company Material Adverse Effect: (1i) changes in conditions in the United States or the global economy or the capital or financial or markets generally, including changes in interest or exchange rates; , fluctuating commodity prices and unexpected product shortages, (2ii) any Effect caused by changes in general legal, regulatory, political, economic or business conditions or changes in GAAP that, in each case, generally affect industries in which such party and its Subsidiaries conduct business, (iii) the negotiation, announcement, pendency or performance consummation of this Agreement, the consummation of Agreement or the Transactions or and the identity of Parent; (3) any change in Parent and its Affiliates, including the trading prices impact thereof on relationships, contractual or trading volume of the Company Common Stock (provided that the exception in this clause (3) shall not prevent otherwise, with customers, suppliers, distributors, partners or otherwise affect a determination that any Effect underlying such change has resulted inemployees, or contributed to, a Company Material Adverse Effect; (4iv) acts of war, sabotage or terrorism, or any escalation or worsening of any such acts of war, sabotage or terrorism; (5) earthquakes, hurricanes, floods earthquakes or other natural disasters; disasters (6in the case of unexpected product shortages referred to in clause (i) any Effect consisting and each of or clauses (ii) and (iv), other than to the extent resulting from any action taken by the Company change, event, development or its Subsidiaries that is required by this Agreement; occurrence has had or (7) any change in the composition of the Company’s Board of Directors pursuant would reasonably be expected to Section 1.3(a); provided, however, that with respect to clauses (1), (4) and (5), such Effect does not have a materially disproportionate and disproportionately adverse effect on the Company and its Subsidiaries, taken as a whole, relative to most other similarly situated, comparable companies and their respective subsidiaries, taken as a whole, in the industry in which the Company such party and its Subsidiaries operate; provided, further, that, any failure as generally compared to meet internal or published projections, forecasts or revenue or earning predictions for any period shall not, other participants in the industries in which such party and of itself, constitute a Company Material Adverse Effectits Subsidiaries conduct business).

Organization, Standing and Corporate Power. (a) Each of the The Company and its Subsidiaries is a corporation duly incorporated or organized, validly existing and in good standing (or equivalent status) under the applicable Law Laws of the state or jurisdiction State of its incorporation or organization. Each of the Company Delaware and its Subsidiaries has all requisite corporate power and authority necessary to own, own or lease and operate all of its properties and assets and to carry on its business as it is now being conducted and conducted. The Company is duly licensed or qualified to do business and is in good standing (or equivalent status) as a foreign corporation or other entity in each jurisdiction in which the nature of the business or activities conducted by it or the character or location of the properties and assets owned, owned or leased or operated by it requires makes such license licensing or qualificationqualification necessary, except where the failure to be so licensed, qualified or in good standing (or equivalent status) has not had and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse EffectEffect (as defined below) on the Company. For purposes of this Agreement, “Company Material Adverse Effect” shall mean any effect, change, event, development, circumstance or occurrence (each, an “Effect”) that, individually or when taken together with all other Effectsin the aggregate, (x) has would reasonably be expected to have, a material adverse effect on the business, results of operations, operations or financial condition (financial or otherwise), business or assets of the Company and its Subsidiaries, Subsidiaries taken as a whole, or (y) a material adverse effect on would or would reasonably be expected to prevent or materially impair or delay the Company’s ability to perform its obligations, or consummate consummation of the Transactions, in accordance with the terms of transactions contemplated by this Agreement, providedother than any Effect (i) generally affecting (A) the industry in which the Company and its Subsidiaries operate or (B) the economy, howevercredit or financial or capital markets, that in no event shall any of the following, either alone or in combination, be deemed to constitute, a Company Material Adverse Effect: (1) changes in conditions in the United States or global economy or capital or financial markets generallyelsewhere in the world, including changes in interest or exchange rates; , or (2ii) any Effect caused by resulting from (A) changes after the announcementdate hereof in Law or in generally accepted accounting principles or in accounting standards, pendency or performance (B) the announcement of this Agreement, the pendency of the Merger or the consummation of the Transactions or the identity of Parent; transactions expressly contemplated hereby, (3) any change in the trading prices or trading volume of the Company Common Stock (provided that the exception in this clause (3) shall not prevent or otherwise affect a determination that any Effect underlying such change has resulted in, or contributed to, a Company Material Adverse Effect; (4C) acts of war, sabotage or terrorism, or any escalation or worsening of any such acts of war, sabotage or terrorism; , (5D) earthquakes, hurricanes, floods tornadoes or other natural disasters; , other than any earthquakes occurring in or affecting California and any and all effects or consequences resulting therefrom or related thereto which shall not be excluded under Section 3.1(a)(i) or (6ii), (E) any Effect consisting actions taken or failure to take action, in each case, to which the Parent has approved, consented to or requested in writing, or compliance with the terms of or to the extent resulting from taking of any action taken by the Company or its Subsidiaries that is required by this Agreement; or Agreement (7including actions required under Section 2.4 but excluding the first sentence of Section 5.1(a)), (F) any decline in the market price, or change in trading volume, of the composition capital stock of the Company’s Board , or (G) any failure to meet any internal or public projections, forecasts or estimates of Directors pursuant to Section 1.3(arevenue or earnings in and of itself (for the avoidance of doubt, the exceptions in clauses (F) and (G) shall not prevent or otherwise affect a determination that the underlying cause of any such failure is a Material Adverse Effect); provided, however, that with respect any Effect referred to clauses (1in Sections 3.1(a)(i), 3.1(a)(ii)(A), (4) and (5C), or (D) shall be taken into account for purposes of each such respective clause only so long as such Effect does not have a materially disproportionate and adverse effect on adversely affect the Company and its Subsidiaries, taken as a whole, relative in a materially disproportionate manner as compared to most other similarly situated, comparable companies and their respective subsidiaries, taken as a whole, participants in the industry in which the Company and its Subsidiaries operate; provided, further, that, any failure . With respect to meet internal or published projections, forecasts or revenue or earning predictions for any period shall not, in and of itself, constitute a Company “Material Adverse Effect” in the representations and warranties set forth in Sections 3.3(d), 3.4, 3.17(b)(vi) and 3.18(b)(vi), the exception set forth in Section 3.1(a)(ii)(B) shall not apply.

Organization, Standing and Corporate Power. (a) Each of the The Company and its Subsidiaries is a corporation duly incorporated or organized, validly existing and in good standing (or equivalent status) under the applicable Law Laws of the state or jurisdiction State of its incorporation or organization. Each of the Company Delaware and its Subsidiaries has all requisite corporate power and authority necessary to own, own or lease and operate all of its properties and assets and to carry on its business as it is now being conducted and conducted. The Company is duly licensed or qualified to do business and is in good standing (or equivalent status) as a foreign corporation or other entity in each jurisdiction in which the nature of the business or activities conducted by it or the character or location of the properties and assets owned, owned or leased or operated held under license by it requires makes such license licensing or qualificationqualification necessary, except where the failure to be so licensed, qualified or in good standing (or equivalent status) has not had and would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. For purposes of this Agreement, “Company Material Adverse Effect” shall mean any change, event, developmentoccurrence, circumstance state of facts or occurrence (each, an “Effect”) that, individually or when taken together with all other Effects, (x) development which has a material adverse effect on (1) the business, results of operations, operations or financial condition (financial or otherwise), business or assets of the Company and its Subsidiaries, Subsidiaries taken as a whole, whole or (y2) a material adverse effect on the Company’s ability of the Company to perform its obligations, obligations under this Agreement or to consummate the Transactionstransactions contemplated by this Agreement by the Outside Date; provided that with respect to clause (1) above, in accordance with the terms of this Agreement, provided, however, that in no event shall any of the following, either alone or in combination, be deemed to constitute, a Company Material Adverse Effect: Effect shall not include any changes, events, occurrences, state of facts or developments, to the extent arising out of or resulting from (1i) changes after the date of this Agreement in conditions generally in the United States or global economy or in the capital or financial markets generallymarkets, including changes in interest or exchange rates; , (2ii) any Effect caused by changes after the announcementdate of this Agreement in general legal, pendency regulatory, political, economic or business conditions or changes in generally accepted accounting principles that, in either case, generally affect the industry in which the Company and its Subsidiaries conduct business, (iii) the negotiation, execution, announcement or performance of this Agreement, Agreement or the consummation of the Transactions Transactions, including the impact thereof on relationships, contractual or the identity of Parent; otherwise, with customers, suppliers, distributors, partners, collaborators or employees, (3) any change in the trading prices or trading volume of the Company Common Stock (provided that the exception in this clause (3) shall not prevent or otherwise affect a determination that any Effect underlying such change has resulted in, or contributed to, a Company Material Adverse Effect; (4iv) acts of war, sabotage or terrorism, or any escalation or worsening of any such acts of war, sabotage or terrorism; terrorism threatened or underway as of the date of this Agreement, (5v) earthquakesstorms, hurricanes, floods earthquakes or other natural disasters; , (6vi) the initiation of any litigation by any stockholder of the Company relating to this Agreement, the Offer or the Merger, (vii) any decline in the market price, or change in trading volume, of the Company Common Stock or any failure of the Company to meet publicly announced revenue or earnings projections; provided that the underlying changes, events, occurrences, state of facts or developments that caused or contributed to any such decline, change or failure may otherwise be taken into consideration in determining whether a Company Material Adverse Effect consisting has occurred, (viii) any delay after the date of or to this Agreement in any of the extent Company’s ongoing research programs resulting from any adverse changes, developments, circumstances, events or occurrences, or (ix) any action taken by the Company or any of its Subsidiaries that which is expressly required by this Agreement or that has been expressly consented to by Parent under the terms of this Agreement; or , except in each of cases (7) any change in the composition of the Company’s Board of Directors pursuant to Section 1.3(a); provided, however, that with respect to clauses (1i), (4ii), (iii), (iv), (v), (vi) and (5vii), to the extent that such Effect does not have a materially disproportionate and adverse effect on changes affect the Company and its Subsidiaries, taken as Subsidiaries in a whole, disproportionate manner relative to most other similarly situated, comparable companies and their respective subsidiaries, taken as a whole, participants in the industry businesses and industries in which the Company and its Subsidiaries operate; provided, further, that, any failure to meet internal or published projections, forecasts or revenue or earning predictions for any period shall not, in and of itself, constitute a Company Material Adverse Effect.

Organization, Standing and Corporate Power. (a) Each of the The Company and its Subsidiaries is a corporation duly incorporated or organized, validly existing and in good standing (or equivalent status) under the applicable Law Laws of the state or jurisdiction State of its incorporation or organization. Each of the Company Delaware and its Subsidiaries has all requisite corporate power and authority necessary to own, own or lease and operate all of its properties and assets and to carry on its business as it is now being conducted and conducted. The Company is duly licensed or qualified to do business and is in good standing (or equivalent status) as a foreign corporation or other entity in each jurisdiction in which the nature of the business or activities conducted by it or the character or location of the properties and assets owned, owned or leased or operated by it requires makes such license licensing or qualificationqualification necessary, except where the failure to be so licensed, qualified or in good standing (or equivalent status) has not had and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse EffectEffect (as defined below) on the Company. For purposes of this Agreement, “Company Material Adverse Effect” shall mean any change, event, development, circumstance event or occurrence (each, an “Effect”) thatwhich, individually or when taken together with all other Effectsin the aggregate, (x) has does have or would reasonably be expected to have, a material adverse effect on the business, results of operations, operations or financial condition (financial or otherwise), business or assets of the Company and its Subsidiaries, Subsidiaries taken as a whole, other than changes, events, occurrences or effects (i) generally affecting (A) the industry in which the Company and its Subsidiaries operates, provided that such changes, events, occurrences or effects do not affect the Company and its Subsidiaries in a materially disproportionate manner as compared to other participants in such industry, or (yB) a material adverse effect on the Company’s ability to perform its obligationseconomy, credit or consummate the Transactionsfinancial or capital markets, in accordance with the terms of this Agreement, provided, however, that in no event shall any of the following, either alone or in combination, be deemed to constitute, a Company Material Adverse Effect: (1) changes in conditions in the United States or global economy or capital or financial markets generallyelsewhere in the world, including changes in interest or exchange rates; , or (2ii) any Effect caused by arising out of, resulting from or attributable to (A) changes in Law or in generally accepted accounting principles or in accounting standards, or changes in general legal, regulatory or political conditions, (B) the announcementnegotiation, pendency execution, announcement or performance of this Agreement, Agreement or the consummation of the Transactions Transactions, including the impact thereof on relationships, contractual or otherwise, with customers, suppliers, distributors, partners or employees, or any litigation arising from allegations of breach of fiduciary duty or violation of Law relating to this Agreement or the identity of Parent; Transactions, (3) any change in the trading prices or trading volume of the Company Common Stock (provided that the exception in this clause (3) shall not prevent or otherwise affect a determination that any Effect underlying such change has resulted in, or contributed to, a Company Material Adverse Effect; (4C) acts of war, sabotage or terrorism, or any escalation or worsening of any such acts of war, sabotage or terrorism; , (5D) earthquakes, hurricanes, floods tornados or other natural disasters; , (6E) any Effect consisting of or to the extent resulting from any action taken by the Company or its Subsidiaries that is required by this Agreement; Agreement (including, without limitation, actions required under Section 2.4) or with Parent’s written consent or at Parent’s written request, (7F) any decline in the market price, or change in trading volume, of the composition capital stock of the Company’s Board of Directors pursuant to Section 1.3(a); provided, however, that with respect to clauses or (1), (4G) and (5), such Effect does not have a materially disproportionate and adverse effect on the Company and its Subsidiaries, taken as a whole, relative to most other similarly situated, comparable companies and their respective subsidiaries, taken as a whole, in the industry in which the Company and its Subsidiaries operate; provided, further, that, any failure to meet any internal or published public projections, forecasts or estimates of revenue or earning predictions for any period shall not, earnings in and of itselfitself (for the avoidance of doubt, constitute the exceptions in clauses (F) and (G) shall not prevent or otherwise affect a Company determination that the underlying cause of any such failure is a Material Adverse Effect).

Organization, Standing and Corporate Power. (a) Each of the The Company and its Subsidiaries is a corporation duly incorporated or organized, validly existing and in good standing (or equivalent status) under the applicable Law Laws of the state or jurisdiction State of its incorporation or organization. Each of the Company Kansas and its Subsidiaries has all requisite corporate power and authority necessary to own, own or lease and operate all of its properties and assets and to carry on its business as it is now being conducted and conducted. The Company is duly licensed or qualified to do business and is in good standing (or equivalent status) as a foreign corporation or other entity in each jurisdiction in which the nature of the business or activities conducted by it or the character or location of the properties and assets owned, owned or leased or operated by it requires makes such license licensing or qualificationqualification necessary, except where the failure to be so licensed, qualified or in good standing (or equivalent status) has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse EffectEffect (as defined below) on the Company. For purposes of this Agreement, “Company Material Adverse Effect” shall mean mean, with respect to the Company, any fact, change, event, developmentoccurrence, circumstance condition or occurrence (eachdevelopment which has, an “Effect”) thator would reasonably be expected to have, individually or when taken together with all other Effects, (x) has a material adverse effect on the business, assets, liabilities, results of operations, operations or condition (financial or otherwise), business or assets ) of the Company and its Subsidiaries, Subsidiaries taken as a whole, or (y) a material adverse effect on the Company’s ability to perform its obligations, or consummate the Transactions, in accordance with the terms of this Agreement, provided, however, provided that in no event shall any none of the following, either alone or following in combination, and of itself shall be deemed to constitute, a Company Material Adverse Effect: (1i) changes in conditions changes, events, occurrences or effects generally affecting the economy or the financial, debt, credit, capital, banking or securities markets or conditions, in the United States or global elsewhere in the world, including effects on such segments, economy or capital markets resulting from or financial markets generallyarising out of (1) any regulatory or political conditions or developments, including changes in interest or exchange rates; (2) any Effect caused outbreak, escalation or threat of hostilities, declared or undeclared acts of war, sabotage or terrorism, or weather or climatic conditions or other force majeure events; or (ii)(A) changes in Law or in generally accepted accounting principles or in accounting standards, or changes in general legal, regulatory or political conditions, (B) the announcement or consummation of this Agreement or any fact, change, event, occurrence, condition or development resulting from any actions taken by the announcementCompany or any of its Subsidiaries at the written request of Parent, pendency including the impact thereof on relationships, contractual or performance of this Agreementotherwise, with customers, suppliers, distributors, Franchisees, partners or employees; provided that with respect to references to Material Adverse Effect in connection with the representations and warranties set forth in Sections 4.3, 4.4, 4.7(a)(xiii), 4.9(c), 4.12(h), 4.14(b) and 4.15(b), the consummation of the Transactions or exception set forth in this subclause (ii)(B) shall not apply, (C) the identity of Parent; , Merger Sub or any of their respective Affiliates as a party to the Transactions, (3D) any action taken by the Company or its Subsidiaries as required by this Agreement or with Parent’s written consent or (E) any decline in the market price, or change in the trading prices or trading volume volume, of the Company Common Stock or any failure of the Company to meet internal projections or forecasts, or projections or forecasts of any other Person, of revenues, earnings or cash flow for any period ending on or after the date of this Agreement (provided that the exception in this clause (3ii)(E) shall not prevent or otherwise affect a determination that any Effect fact, change, event, occurrence, condition or development underlying such change has resulted inin market price or trading volume or failure has, or contributed would reasonably be expected to have, or contribute to, a Company Material Adverse Effect); unless, in the cases of clauses (4i) acts of waror (ii), sabotage or terrorism, or any escalation or worsening of any such acts of warfact, sabotage change, event, occurrence, condition or terrorism; (5) earthquakes, hurricanes, floods or other natural disasters; (6) any Effect consisting of or to the extent resulting from any action taken by the Company or its Subsidiaries that is required by this Agreement; or (7) any change in the composition of the Company’s Board of Directors pursuant to Section 1.3(a); provided, however, that with respect to clauses (1), (4) and (5), such Effect does not have development has a materially disproportionate and adverse effect on the Company and its Subsidiaries, taken as a whole, relative when compared to most other similarly situated, comparable companies and their respective subsidiaries, taken as a whole, operating in the industry same industries in which the Company and or its Subsidiaries operate; provided, further, that, any failure to meet internal or published projections, forecasts or revenue or earning predictions for any period shall not, in and of itself, constitute a Company Material Adverse Effect.

Organization, Standing and Corporate Power. Each of the Company and its Subsidiaries (ai) is a corporation or limited liability company, as the case may be, duly organized, validly existing and in good standing under the Laws of the jurisdiction in which it is incorporated or formed, as the case may be, and (ii) has all requisite corporate or limited liability company, as the case may be, power and authority to carry on its business as now being conducted. Each of the Company and its Subsidiaries is duly incorporated qualified or organized, validly existing and in good standing (or equivalent status) under the applicable Law of the state or jurisdiction of its incorporation or organization. Each of the Company and its Subsidiaries has all requisite power and authority to own, lease and operate its properties and assets and to carry on its business as it is now being conducted and is duly licensed or qualified to do business and is in good standing (or equivalent status) as a foreign corporation or other entity in each jurisdiction in which the nature of the its business or activities conducted by it the ownership, leasing or the character operation of its properties or location of the properties and other assets ownedmakes such qualification or licensing necessary, leased or operated by it requires other than in such license or qualification, except jurisdictions where the failure to be so licensed, qualified or licensed individually or in good standing (or equivalent status) the aggregate has not had and would is not reasonably be expected likely to have, individually or in the aggregate, have a Company Material Adverse Effect. For purposes of this Agreement, “Company "Material Adverse Effect” " shall mean any state of facts, change, event, development, circumstance effect, condition or occurrence (eachany such item, an “"Effect”") that, individually that is or when taken together with all other Effects, (x) has is reasonably likely to adversely affect in a material adverse effect on respect the results of operations, condition (financial or otherwise), business or assets enterprise value of the Company and its Subsidiaries, Subsidiaries taken as a whole, whole or (y) a that impairs in any material adverse effect on respect the Company’s ability of the Company to perform its obligationsobligations under this Agreement or prevents or materially impedes, interferes with, hinders or consummate delays the Transactions, in accordance with consummation of the terms of this Agreement, provided, however, that in no event shall Merger or any of the followingother transactions contemplated hereby, either alone or except, in combinationeach case, be deemed for any Effect to constitute, a Company Material Adverse Effect: the extent such Effect results from (1A) changes any change in conditions in the United States States, foreign or global economy or capital or financial markets generally, including changes any change in interest or exchange rates; , (2) any Effect caused by the announcement, pendency or performance of this Agreement, the consummation of the Transactions or the identity of Parent; (3B) any change in the trading prices conditions (including any change in general legal, regulatory, political, economic or trading volume of the Company Common Stock (provided that the exception business conditions or any change in this clause (3GAAP) shall not prevent or otherwise affect a determination that any Effect underlying such change has resulted in, or contributed tootherwise generally affecting, a Company Material Adverse Effect; (4) acts of warthe retail, sabotage or terrorismapparel and accessories industry generally, or any escalation or worsening of any such acts of war, sabotage or terrorism; (5) earthquakes, hurricanes, floods or other natural disasters; (6) any Effect consisting of or to except if the extent resulting from any action taken by the Company or its Subsidiaries that is required by this Agreement; or (7) any change in the composition of the Company’s Board of Directors pursuant to Section 1.3(a); provided, however, that with respect to clauses (1), (4) and (5), such Effect does not have a materially disproportionate and adverse effect on the Company and its Subsidiaries, taken as a whole, relative from such change is disproportionate to most the effect from such change on other similarly situatedpersons generally operating in such industry, comparable companies (C) any decline in the market price of the Company Common Stock (but not any Effect underlying such decline), (D) the negotiation, execution, announcement or pendency of this Agreement and their respective subsidiariesthe transactions contemplated hereby, including any impact thereof on relationships, contractual or otherwise, with any customers, suppliers, distributors, partners or employees, (E) any act of terrorism or war (whether or not threatened, pending or declared), except if the effect on the Company and its Subsidiaries, taken as a whole, from such events is disproportionate to the effect from such events on other persons generally operating in the retail, apparel and accessories industry in which or (F) any action taken by the Company and or any of its Subsidiaries operatewith the written consent of Parent; providedit being understood and agreed that for purposes of Section 3.04(b), further, that, any failure to meet internal or published projections, forecasts or revenue or earning predictions for any period shall not, in and the definition of itself, constitute a Company "Material Adverse Effect" shall not include the exception set forth in the preceding clause (D). The Company has made available to Parent true and complete copies of (x) the certificate of incorporation of the Company as in effect on the date hereof ("Company Certificate") and the By-laws of the Company as in effect on the date hereof ("Company By-laws") and (y) the minutes of all of the meetings of the stockholders, the Board of Directors and each committee of the Board of Directors of the Company held between February 1, 2003 and November 5, 2004.

Organization, Standing and Corporate Power. (a) Each of the The Company and its Subsidiaries is a corporation duly incorporated or organized, validly existing and in good standing (or equivalent status) under the applicable Law Laws of the state or jurisdiction State of its incorporation or organization. Each of the Company Delaware and its Subsidiaries has all requisite corporate power and authority necessary to own, own or lease and operate all of its properties and assets and to carry on its business as it is now being conducted and conducted. The Company is duly licensed or qualified to do business and is in good standing (or equivalent status) as a foreign corporation or other entity in each jurisdiction in which the nature of the business or activities conducted by it or the character or location of the properties and assets owned, owned or leased or operated by it requires makes such license or qualificationqualification necessary, except where the failure to be so licensed, qualified or in good standing (or equivalent status) has not had and would not reasonably be expected to havenot, individually or in the aggregate, have or reasonably be expected to have, a Company Material Adverse EffectEffect (as defined below). For purposes of this Agreement, “Company Material Adverse Effect” shall mean any change, event, developmentoccurrence, circumstance or occurrence (each, an “Effect”) effect that, individually or when taken together in the aggregate with all any other Effectschange, event, occurrence, circumstance or effect, (xa) has a material is materially adverse effect on to the business, results of operations, operations or financial condition (financial or otherwise), business or assets of the Company and its Subsidiaries, Subsidiaries taken as a whole, whole or (yb) a material adverse effect on prevents, materially delays or materially impairs the Company’s ability of the Company to perform its obligations, or consummate the Transactions, in accordance with the terms of this Agreement, Merger; provided, however, that that, in no event the case of clause (a), Company Material Adverse Effect shall not include any change, event, occurrence, fact, circumstance or effect arising out of, resulting from or attributable to the following: (i) any condition, change, event, occurrence or effect in any of the followingindustries or markets in which the Company or its Subsidiaries operate; (ii) any enactment of, either alone change in, or change in combinationinterpretation of, be deemed to constituteany Law (including the rules, a Company Material Adverse Effect: regulations and policies of the U.S. Food and Drug Administration (1the “FDA”) and the U.S. Drug Enforcement Administration (the “DEA”)) or GAAP; (iii) any changes in general economic, regulatory or political conditions (or changes therein) or conditions (or changes therein) in the United States financial, credit or global economy or capital or financial securities markets generally, (including changes in interest or currency exchange rates) in any country or region in which the Company or its Subsidiaries conduct business; (2iv) the results of pre-clinical and clinical testing or the determination by, or the delay of a determination by, the FDA (or any Effect caused by panel or advisory committee empowered or appointed thereby), in each case, after the announcement, pendency or performance date of this Agreement, with respect to the consummation approval or non-approval of any Company Product which has not, as of the Transactions date of this Agreement, been approved or cleared by the identity of ParentFDA; (3v) any change in the trading prices or trading volume of the Company Common Stock (provided that matters referred to under the exception headings “Provigil Patent Litigation and Settlements,” “Amrix Patent Litigation,” and “Fentora Patent Litigation” in this clause (3) shall not prevent or otherwise affect a determination that any Effect underlying Note 18 of the Consolidated Financial Statements included in Part II, Item 8 of the Company’s Annual Report on Form 10-K, filed on February 11, 2011, including adverse developments relating to such change has resulted inmatters, or contributed to, a Company Material Adverse Effectbut subject to compliance with Section 5.1(xvi); (4vi) any acts of warGod, sabotage or natural disasters, terrorism, armed hostilities, sabotage, war or any escalation or worsening of any such acts of terrorism, armed hostilities or war, sabotage or terrorism; (5vii) earthquakesthe identity of Parent or Merger Sub, hurricanes, floods the announcement or other natural disasterspendency of this Agreement or the Transactions or the consummation of the Transactions; (6viii) any Effect consisting of or to the extent resulting from any action taken pursuant to the terms of this Agreement or with the consent or at the direction of Parent or Merger Sub; (ix) any decline in the market price, or change in trading volume, of the capital stock of the Company (provided that the underlying causes of such decline or change may be considered in determining whether a Company Material Adverse Effect has occurred); (x) any failure by the Company or its Subsidiaries, in and of itself, to meet internal, analysts’ or other earnings estimates or financial projections or forecasts for any period, or any changes in credit ratings and any changes in any analysts recommendations or ratings with respect to the Company or any of its Subsidiaries (provided that is required by the underlying causes of such decline or change may be considered in determining whether a Company Material Adverse Effect has occurred); and (xi) any pending, initiated or threatened legal or administrative proceeding, claim, suit or action against the Company, any of its Subsidiaries or any of their respective officers or directors, in each case, arising out of or relating to (A) the execution of this Agreement; Agreement or the transactions contemplated hereby or (7B) any change in the composition of attempt and proposal by Valeant Pharmaceuticals International, Inc. (“Valeant”) to acquire the Company’s Board of Directors pursuant Company or the consent solicitation related thereto, as such proposal or consent solicitation may be amended from time to Section 1.3(a)time; provided, however, that with respect to the foregoing clauses (1i), (4ii), (iii) and (5vi), such Effect does not have any effects resulting from any change, event, occurrence, circumstance or effect that has a materially disproportionate and adverse effect on the Company and its Subsidiaries, taken as a whole, relative as compared to most other similarly situated, comparable companies and their respective subsidiaries, taken as a whole, in the industry in which the Company and its Subsidiaries operate; provided, further, that, any failure to meet internal or published projections, forecasts or revenue or earning predictions operate shall be counted for any period shall not, in and purposes of itself, constitute determining whether a Company Material Adverse EffectEffect has occurred, but only to the extent of such disproportionate effect.

Organization, Standing and Corporate Power. (a) Each of the Company and each of its Subsidiaries subsidiaries is a corporation duly incorporated or organized, validly existing and in good standing (or equivalent status) under the applicable Law laws of the state or jurisdiction of in which it is incorporated and has the requisite corporate power and authority to carry on its incorporation or organizationbusiness as now being conducted. Each of the Company and each of its Subsidiaries has all requisite power and authority to own, lease and operate its properties and assets and to carry on its business as it is now being conducted and subsidiaries is duly qualified or licensed or qualified to do business and is in good standing (or equivalent status) as a foreign corporation or other entity in each jurisdiction in which the nature of the its business or activities conducted by it the ownership or the character leasing of its properties makes such qualification or location of the properties and assets ownedlicensing necessary, leased or operated by it requires other than in such license or qualification, except jurisdictions where the failure to be so licensed, qualified or licensed (individually or in good standing (or equivalent statusthe aggregate) has not had and would could not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse EffectEffect (defined below). The Company has made available to Parent complete and correct copies of its certificate of incorporation and by-laws and the certificates of incorporation and by-laws of its subsidiaries, in each case as amended to the date of this Agreement. For purposes of this Agreement, “Company a "subsidiary" of any person means another person, an amount of the voting securities, other voting ownership or voting partnership interests of which is sufficient to elect at least a majority of its Board of Directors or other governing body (or, if there are no such voting interests, 50% or more of the equity interests of which) is owned directly or indirectly by such first person. For the purposes hereof, "Material Adverse Effect” shall mean any change, event, development, circumstance or occurrence (each, an “Effect”) that, individually or when taken together with all other Effects, (x) has " means a material adverse effect on (a) the results of operationsassets, liabilities, condition (financial or otherwise), business business, properties, results of operations or assets prospects of the Company and its Subsidiaries, subsidiaries taken as a whole, whole or (yb) a material adverse effect on the Company’s ability to perform its obligations, or consummate the Transactions, in accordance with the terms of this Agreement, provided, however, that in no event shall any of the following, either alone or in combination, be deemed to constitute, a Company Material Adverse Effect: (1) changes in conditions in the United States or global economy or capital or financial markets generally, including changes in interest or exchange rates; (2) any Effect caused by the announcement, pendency or performance of this Agreement, the consummation of the Transactions transactions contemplated hereby; provided that occurrences or the identity of Parent; events resulting from (3i) any change changes in the trading prices of oil, gas, natural gas liquids or trading volume other hydrocarbon products, (ii) changes in general economic conditions, including general stock market conditions and interest rate changes, or (iii) the adverse determination of any pending litigation disclosed in the Disclosure Schedule shall in each case be excluded from consideration for purposes of the Company Common Stock (provided that the exception in this clause (3) shall not prevent effect of an occurrence or otherwise affect a determination that any Effect underlying such change has resulted in, or contributed to, a Company Material Adverse Effect; (4) acts of war, sabotage or terrorism, or any escalation or worsening of any such acts of war, sabotage or terrorism; (5) earthquakes, hurricanes, floods or other natural disasters; (6) any Effect consisting of or to the extent resulting from any action taken by the Company or its Subsidiaries that is required by this Agreement; or (7) any change in the composition of the Company’s Board of Directors pursuant to Section 1.3(a); provided, however, that with respect to clauses (1), (4) and (5), such Effect does not have a materially disproportionate and adverse effect event on the Company and its Subsidiaries, subsidiaries taken as a whole, relative to most other similarly situated, comparable companies and their respective subsidiaries, taken as a whole, in the industry in which the Company and its Subsidiaries operate; provided, further, that, any failure to meet internal or published projections, forecasts or revenue or earning predictions for any period shall not, in and of itself, constitute a Company Material Adverse Effect.

Organization, Standing and Corporate Power. (a) Each of the Company and its Subsidiaries is a corporation duly incorporated or organized, validly existing and in good standing (or equivalent status) under the applicable Law Laws of the state or jurisdiction of its incorporation or organization. Each of the Company in which it is incorporated and its Subsidiaries has all requisite corporate power and authority necessary to own, own or lease and operate all of its properties and assets and to carry on its business as it is now being conducted conducted. Each of the Company and its Subsidiaries is duly licensed or qualified to do business and is in good standing (or equivalent status) as a foreign corporation or other entity in each jurisdiction in which the nature of the business or activities conducted by it or the character or location of the properties and assets owned, owned or leased or operated by it requires makes such license licensing or qualificationqualification necessary, except where the failure to be so licensed, qualified or in good standing (standing, individually or equivalent status) in the aggregate, has not had and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse EffectEffect (as defined below). For purposes of this Agreement, “Company Material Adverse Effect” shall mean any fact, circumstance, condition, change, event, developmentoccurrence, circumstance development or occurrence (eacheffect, an “Effect”) that, that individually or when taken in the aggregate together with all other Effectsfacts, circumstances, conditions, changes, events, occurrences, developments or effects: (xi) which has had or would reasonably be expected to have, directly or indirectly, a material adverse effect on the results of operations, condition (financial or otherwise), business business, assets or assets liabilities of the Company and its Subsidiaries taken as a whole; other than facts, circumstances, conditions, changes, events, occurrences or effects (A) generally affecting (1) the industry of the Company and its Subsidiaries, taken as a wholeor (2) the economy, or (y) a material adverse effect on the Company’s ability to perform its obligationsfinancial or capital markets, or consummate the Transactions, in accordance with the terms of this Agreement, provided, however, that in no event shall any of the following, either alone or in combination, be deemed to constitute, a Company Material Adverse Effect: (1) changes in conditions in the United States or global economy elsewhere in the world, or capital (B) arising out of, resulting from or financial markets generallydirectly attributable to (X) changes after the date of this Agreement in Law or in GAAP, including or changes in interest general legal, regulatory or exchange rates; political conditions, (2) any Effect caused by the announcement, pendency or performance of this Agreement, the consummation of the Transactions or the identity of Parent; (3) any change in the trading prices or trading volume of the Company Common Stock (provided that the exception in this clause (3) shall not prevent or otherwise affect a determination that any Effect underlying such change has resulted in, or contributed to, a Company Material Adverse Effect; (4Y) acts of war, sabotage or terrorism, or any escalation or worsening of any such acts of war, sabotage or terrorism; terrorism threatened or underway as of the date of this Agreement or (5Z) earthquakes, hurricanes, floods tornados or other natural disasters; , except, with respect to (6i)(A)(1), (i)(A)(2) any Effect consisting of or and (i)(B)(X), only to the extent resulting from any action taken by that the Company or its Subsidiaries that is required by this Agreement; or (7) any effects of such change in the composition of the Company’s Board of Directors pursuant to Section 1.3(a); provided, however, that with respect to clauses (1), (4) and (5), such Effect does not have a materially disproportionate and adverse effect on disproportionately affect the Company and its Subsidiaries, taken as a whole, relative as compared to most other similarly situated, comparable companies and their respective subsidiaries, taken as a whole, in the industry in which the Company and its Subsidiaries operate; provided, further, that, or (ii) which has impaired or prevented or would reasonably be expected to impair or prevent in any failure material respect the ability of the Company to meet internal perform its obligations hereunder or published projections, forecasts prevent or revenue or earning predictions for any period shall not, in and of itself, constitute materially delay the consummate the Transactions on a Company Material Adverse Effecttimely basis.

Organization, Standing and Corporate Power. (a) Each of the Company and its Subsidiaries is a corporation duly incorporated or organized, validly existing and in good standing (or equivalent status) under the applicable Law Laws of the state or jurisdiction of in which it is incorporated and has all requisite corporate power and authority to own, operate and lease its incorporation or organization. properties and to carry on its business as now being conducted. (b) Each of the Company and its Subsidiaries has all requisite power and authority to own, lease and operate its properties and assets and to carry on its business as it is now being conducted and is duly qualified or licensed or qualified to do business and is in good standing (or equivalent status) as a foreign corporation or other entity in each jurisdiction in which the nature of the its business or activities conducted by it the ownership, leasing or the character operation of its properties makes such qualification or location of the properties and assets ownedlicensing necessary, leased or operated by it requires other than in such license or qualification, except jurisdictions where the failure to be so licensed, qualified or licensed individually or in good standing (or equivalent status) the aggregate has not had and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect. For purposes of this Agreement, “Company Material Adverse Effect” "COMPANY MATERIAL ADVERSE EFFECT" shall mean any change, event, developmentoccurrence, violation, circumstance or occurrence (each, an “Effect”) that, individually effect having or when taken together with all other Effects, (x) has that is reasonably likely to have a material adverse effect on (i) the ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated hereby, (ii) the ability of the Company Shareholders who are party to the Company Shareholder Voting Agreement to perform their obligations thereunder or (iii) the business, assets (including intangible assets), Liabilities, financial condition or results of operations, condition (financial or otherwise), business or assets operations of the Company and its Subsidiaries, taken as a whole, except to the extent any change or effect arises out of, results from or is attributable to (ya) a material adverse effect on the Company’s ability to perform its obligations, or consummate the Transactions, in accordance with the terms of this Agreement, provided, however, that in no event shall any of the following, either alone or in combination, be deemed to constitute, a Company Material Adverse Effect: (1) changes change in conditions in the United States States, foreign or global economy or capital or financial markets generally, including changes any change in interest or exchange rates; (2) any Effect caused by the announcement, pendency or performance of this Agreementwhich, the consummation of the Transactions or the identity of Parent; (3) any change in the trading prices or trading volume of the Company Common Stock (provided that the exception in this clause (3) shall each, do not prevent or otherwise disproportionately affect a determination that any Effect underlying such change has resulted in, or contributed to, a Company Material Adverse Effect; (4) acts of war, sabotage or terrorism, or any escalation or worsening of any such acts of war, sabotage or terrorism; (5) earthquakes, hurricanes, floods or other natural disasters; (6) any Effect consisting of or to the extent resulting from any action taken by the Company or its Subsidiaries that is required by this Agreement; or (7) any change in the composition of the Company’s Board of Directors pursuant to Section 1.3(a); provided, however, that with respect to clauses (1), (4) and (5), such Effect does not have a materially disproportionate and adverse effect on the Company and its Subsidiaries, taken as a whole, relative to most other similarly situated(b) any change in conditions (including any change in general legal, comparable companies and their respective subsidiariesregulatory, taken as a wholepolitical, economic or business conditions or any change in GAAP) in or otherwise generally affecting the industry in which the Company and its Subsidiaries operate; providedconduct business, further, that, any failure to meet internal or published projections, forecasts or revenue or earning predictions for any period shall notwhich, in each case, do not disproportionately affect the Company and its Subsidiaries, taken as a whole, (c) the impact of itselfthe announcement of the execution of this Agreement or the consummation of the transactions contemplated by this Agreement on any relationships, constitute contractual or otherwise, between the Company and its landlords, suppliers, vendors, employees or Affiliate Professionals, or (d) any act of terrorism or war (whether or not threatened, pending or declared), which does not disproportionately affect the Company and its Subsidiaries, taken as a whole. The Company Material Adverse Effecthas made available to Parent complete and correct copies of its Articles of Incorporation and Bylaws, each as amended to the date hereof, and the Articles of Incorporation and Bylaws or other similar documents of each Subsidiary of the Company, each as amended to the date hereof. Such Articles of Incorporation and Bylaws of the Company and each of its Subsidiaries are in full force and effect. Neither the Company nor any of its Subsidiaries is in violation of any provision of its Articles of Incorporation or Bylaws or comparable governing documents. The respective Articles of Incorporation and Bylaws or comparable governing documents of the Subsidiaries of the Company do not contain any provision limiting or otherwise restricting the ability of the Company to control its Subsidiaries.

Organization, Standing and Corporate Power. (a) Each of the The Company and each of its Subsidiaries is a corporation duly incorporated or organized, validly existing and in good standing (or equivalent status) under the applicable Law Laws of the state or jurisdiction of its incorporation or organization. Each of the Company in which it is incorporated and its Subsidiaries has all requisite corporate power and authority necessary to own, own or lease and operate all of its properties and assets and to carry on its business as it is now being conducted conducted. The Company and each of its Subsidiaries is duly licensed or qualified to do business and is in good standing (or equivalent status) as a foreign corporation or other entity in each jurisdiction in which the nature of the business or activities conducted by it or the character or location of the properties and assets owned, owned or leased or operated by it requires makes such license licensing or qualificationqualification necessary, except where the failure to be so licensed, qualified or in good standing (standing, individually or equivalent status) in the aggregate, has not had and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect. For purposes of this Agreement, the term “Company Material Adverse Effect” shall mean any change, event, developmentoccurrence, violation of any legal, contractual or similar obligation, inaccuracy, effect or circumstance or occurrence (eachany such item, an “Effect”) thatwhich individually, individually or when taken together with all other EffectsEffects that have occurred prior to the date of determination of the occurrence of a Company Material Adverse Effect, (xi) has a material is materially adverse effect on to the results of operations, condition (financial or otherwise), business or assets (tangible or intangible), capitalization, results of operations or financial condition of the Company and its Subsidiaries, Subsidiaries taken as a whole, or (yii) a material adverse effect on materially impedes the Company’s ability authority of the Company or any of its Subsidiaries, to perform its obligations, or consummate the Transactions, Transactions in accordance with the terms of this Agreement, hereof and applicable Laws; provided, however, that in no event shall any none of the following, following shall be deemed either alone or in combination, be deemed combination to constitute, and none of the following shall be taken into account in determining whether there has been or will be, a Company Material Adverse Effect: (1A) any Effect to the extent resulting from changes in conditions in to the United States U.S. or global economy or capital or financial markets generally, including in general (except to the extent such changes in interest or exchange rateshave a materially disproportionate effect on the Company and its Subsidiaries taken as a whole); (2B) any Effect caused by to the announcementextent resulting from changes in the industries in which the Company operates (except to the extent such changes have a materially disproportionate effect on the Company and its Subsidiaries taken as a whole); (C) any Effect to the extent resulting from fluctuations in the value of currencies; (D) any Effect to the extent resulting from acts of terrorism, war, national or international calamity or any other similar event (except to the extent such Effect has a materially disproportionate effect on the Company and its Subsidiaries taken as a whole); (E) any Effect to the extent resulting from the announcement or pendency or performance of this Agreement, the consummation Agreement or any of the Transactions or the identity of Parent; (3) any change in the trading prices or trading volume of the Company Common Stock (provided that the exception in this clause (3) shall not prevent or otherwise affect a determination that including any Effect underlying such change has resulted in, or contributed to, a Company Material Adverse Effect; (4) acts of war, sabotage or terrorism, or any escalation or worsening of any such acts of war, sabotage or terrorism; (5) earthquakes, hurricanes, floods or other natural disasters; (6) any Effect consisting of or to the extent resulting from any action taken by litigation, any loss of or delay in placing customer orders or any departure or loss of employees to the extent arising from such announcement or pendency of this Agreement or any of the Transactions); (F) any Effect to the extent resulting from the failure of the Company or its Subsidiaries that is required by this Agreement; or (7) any change in the composition of the Company’s Board of Directors pursuant to Section 1.3(a); provided, however, that with respect to clauses (1), (4) and (5), such Effect does not have a materially disproportionate and adverse effect on the Company and its Subsidiaries, taken as a whole, relative to most other similarly situated, comparable companies and their respective subsidiaries, taken as a whole, in the industry in which the Company and its Subsidiaries operate; provided, further, that, any failure to meet internal or published projections, forecasts analysts’ expectations or revenue or earning predictions for any period shall not, in and of itself, constitute a Company Material Adverse Effect.projections (it being understood,

Organization, Standing and Corporate Power. (a) Each of the Company and its Subsidiaries is a corporation duly incorporated or organized, validly existing and in good standing (or equivalent status) under the applicable Law Laws of the state or jurisdiction of its incorporation or organization. Each of the Company in which it is incorporated and its Subsidiaries has all requisite corporate power and authority necessary to own, own or lease and operate all of its properties and assets and to carry on its business as it is now being conducted conducted. Each of the Company and its Subsidiaries is duly licensed or qualified to do business and is in good standing (or equivalent status) as a foreign corporation or other entity in each jurisdiction in which the nature of the business or activities conducted by it or the character or location of the properties and assets owned, owned or leased or operated by it requires makes such license licensing or qualificationqualification necessary, except where the failure to be so licensed, qualified or in good standing (standing, individually or equivalent status) in the aggregate, has not had and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse EffectEffect (as defined below). For purposes of this Agreement, “Company Material Adverse Effect” shall mean any change, event, development, circumstance occurrence or occurrence effect which has had or would reasonably be expected to (each, an “Effect”i) that, individually or when taken together with all other Effects, (x) has have a material adverse effect on the results of operations, condition (financial or otherwise), business business, assets or assets liabilities of such party and its Subsidiaries taken as a whole, other than changes, events, occurrences or effects (A) generally affecting (I) the industry of the Company and its Subsidiaries, taken as a wholeprovided that such changes, events, occurrences or effects do not disproportionately affect such party and its Subsidiaries, or (yII) a material adverse effect on the Company’s ability to perform its obligationseconomy, or consummate the Transactionsfinancial or capital markets, in accordance with the terms of this Agreement, provided, however, that in no event shall any of the following, either alone or in combination, be deemed to constitute, a Company Material Adverse Effect: (1) changes in conditions in the United States or global economy or capital or financial markets generallyelsewhere in the world, including changes in interest or exchange rates; (2) any Effect caused by the announcement, pendency or performance of this Agreement, the consummation of the Transactions or the identity of Parent; (3) any change in the trading prices or trading volume of the Company Common Stock (provided that the exception in this clause (3) shall not prevent or otherwise affect a determination that any Effect underlying such change has resulted in, or contributed to(B) arising out of, a Company Material Adverse Effect; resulting from or attributable to (4I) changes in Law or in generally accepted accounting principles or in accounting standards, or changes in general legal, regulatory or political conditions, (II) acts of war, sabotage or terrorism, or any escalation or worsening of any such acts of war, sabotage or terrorism; terrorism threatened or underway as of the date of this Agreement, (5III) earthquakes, hurricanes, floods tornados or other natural disasters; , (6IV) the negotiation, execution, announcement or performance of this Agreement or the consummation of the Transactions, including the impact thereof on relationships, contractual or otherwise, with customers, suppliers, distributors, partners or employees, or any Effect consisting litigation arising from allegations of breach of fiduciary duty or violation of Law relating to this Agreement or the extent resulting from Transactions, (V) any action taken by the Company or its Subsidiaries that is required as contemplated or permitted by this Agreement; Agreement or with Parent’s consent, or any failure by the Company to take any action as a result of the restrictions in Article V, or (7VI) any decline in the market price, or change in the composition trading volume, of the Company’s Board capital stock of Directors pursuant the Company or any failure to Section 1.3(ameet publicly announced revenue or earnings projections (with respect to subclause (VI) of this clause (B), it being understood and agreed that the facts and circumstances giving rise to such change, event, occurrence or effect that are not otherwise excluded from the definition of Company Material Adverse Effect may be taken into account in determining whether there has been a Company Material Adverse Effect); provided, howeverthat such changes, that with respect events, occurrences or effects referred to clauses in subclauses (1), I) - (4III) and of this clause (5), such Effect does B) do not have a materially disproportionate and adverse effect on disproportionately affect the Company and its Subsidiaries, taken as a whole, relative to most other similarly situated, comparable companies and their respective subsidiaries, taken as a whole, or (ii) impair in any material respect the industry in which ability of the Company and to perform its Subsidiaries operate; provided, further, that, any failure to meet internal obligations hereunder or published projections, forecasts prevent or revenue or earning predictions for any period shall not, in and materially delay consummation of itself, constitute a Company Material Adverse Effectthe Transactions.

Organization, Standing and Corporate Power. (a) Each of the The Company and its Subsidiaries is a corporation duly incorporated or organized, validly existing and in good standing (or equivalent status) under the applicable Law laws of the state or jurisdiction State of its incorporation or organizationDelaware. Each of the The Company and its Subsidiaries has all requisite corporate power and authority necessary to own, own or lease and operate all of its properties and assets and to carry on its business as it is now being conducted and is duly licensed or qualified to do business and is in good standing (or equivalent status) as a foreign corporation or other entity in each jurisdiction in which the nature of the business or activities conducted by it or the character or location of the properties and assets owned, owned or leased or operated by it requires makes such license licensing or qualificationqualification necessary, except where the failure to be so licensed, qualified or in good standing (or equivalent status) ), individually or in the aggregate, has not had and would not reasonably be expected to have, individually or in have a Material Adverse Effect on the aggregate, a Company ("Company Material Adverse Effect"). For purposes of this Agreement, “Company "Material Adverse Effect” " shall mean mean, with respect to any party, any change, event, development, circumstance development or occurrence (each, an “Effect”) that, individually or when taken together with all other Effects, (x) that has a material adverse effect on (A) the ability of such party to timely consummate the Transactions or (B) the results of operations, financial condition (financial or otherwise), business or assets of the Company such party and its Subsidiaries, Subsidiaries taken as a whole, other than changes, events, developments or occurrences arising out of, resulting from or attributable to (y) a material adverse effect on the Company’s ability to perform its obligations, or consummate the Transactions, in accordance with the terms of this Agreement, provided, however, that in no event shall any of the following, either alone or in combination, be deemed to constitute, a Company Material Adverse Effect: (1i) changes in conditions in the United States or global economy or the capital or financial or markets or the world economy generally, including (ii) changes in interest general legal, regulatory, political, economic or exchange rates; (2) any Effect caused by the announcementbusiness conditions or changes in GAAP that, pendency or performance of this Agreementin each case, the consummation of the Transactions or the identity of Parent; (3) any change in the trading prices or trading volume of the Company Common Stock (provided that the exception in this clause (3) shall not prevent or otherwise affect a determination that any Effect underlying such change has resulted in, or contributed to, a Company Material Adverse Effect; (4) acts of war, sabotage or terrorism, or any escalation or worsening of any such acts of war, sabotage or terrorism; (5) earthquakes, hurricanes, floods or other natural disasters; (6) any Effect consisting of or to the extent resulting from any action taken by the Company or its Subsidiaries that is required by this Agreement; or (7) any change in the composition of the Company’s Board of Directors pursuant to Section 1.3(a); provided, however, that with respect to clauses (1), (4) and (5), such Effect does not have a materially disproportionate and adverse effect impact on the Company and its Subsidiaries, Subsidiaries taken as a whole, relative to most other similarly situatedthe Company's industry peers, comparable companies or (iii) the negotiation, announcement, pendency, execution, performance or consummation of this Agreement or the Transactions and their respective subsidiariesthe identity of Parent and Purchaser, taken as a wholeincluding the impact thereof on relationships, in the industry in which the Company and its Subsidiaries operate; providedcontractual or otherwise, furtherwith customers, thatsuppliers, distributors, partners or employees (including any failure to meet internal obtain any consent or published projections, forecasts or revenue or earning predictions for any period shall not, waiver listed in and Schedule 3.3(c) of itself, constitute a the Company Material Adverse EffectDisclosure Schedule).

Organization, Standing and Corporate Power. (a) Each of the Company and its Subsidiaries (as defined hereafter) is duly incorporated or organized, validly existing and in good standing (or equivalent status) standing, if available, under the applicable Law Laws (as defined hereafter) of the state jurisdiction in which it is incorporated or jurisdiction organized and has all requisite corporate power and authority to own, operate and lease its properties and to carry on its business as now being conducted. The Company has made available to Parent complete and correct copies of its incorporation Certificate of Incorporation and Bylaws, each as amended and restated to the date hereof, and the Certificate of Incorporation and Bylaws or organization. other similar documents of each Subsidiary of the Company, each as amended and restated to the date hereof. (b) Each of the Company and its Subsidiaries has all requisite power and authority to own, lease and operate its properties and assets and to carry on its business as it is now being conducted and is duly qualified or licensed or qualified to do business and is in good standing (or equivalent status) as a foreign corporation or other entity standing, if available, in each jurisdiction in which the nature of the its business or activities conducted by it the ownership, leasing or the character operation of its properties makes such qualification or location of the properties and assets ownedlicensing necessary, leased or operated by it requires other than in such license or qualification, except jurisdictions where the failure to be so licensed, qualified or in good standing (or equivalent status) has not had and would not reasonably be expected to havelicensed, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect. For purposes of this Agreement, “Company Material Adverse Effect” shall mean any change, state of facts, event, development, circumstance occurrence or occurrence (each, an “Effect”) effect that, individually or when taken together in the aggregate with all such other Effectschanges, (x) has states of facts, events, occurrences or effects, would have a material adverse effect on (i) the ability of the Company to consummate the Merger or (ii) the business, assets, financial condition, operations or results of operations, condition (financial or otherwise), business or assets operations of the Company and its Subsidiaries, taken as a whole, provided, that none of the following shall constitute a Company Material Adverse Effect or, with the exception of (C) or (y) a material adverse effect on the Company’s ability to perform its obligations, or consummate the Transactions, in accordance with the terms of this Agreement, provided, however, that in no event shall any of the following, either alone or in combinationD), be deemed taken into account when determining whether there has been or is reasonably expected to constitute, be a Company Material Adverse Effect: any effect on the Company resulting from or arising out of (1A) changes to the extent that they do not have a materially disproportionate effect on the Company and its Subsidiaries taken as a whole, (i) any change in conditions in the United States States, foreign or global economy or capital or financial markets generally, including changes any change in interest or exchange rates; , or (2) any Effect caused by the announcement, pendency or performance of this Agreement, the consummation of the Transactions or the identity of Parent; (3ii) any change in the trading prices or trading volume of the Company Common Stock conditions (provided that the exception in this clause (3) shall not prevent or otherwise affect a determination that any Effect underlying such change has resulted in, or contributed to, a Company Material Adverse Effect; (4) acts of war, sabotage or terrorism, or any escalation or worsening of any such acts of war, sabotage or terrorism; (5) earthquakes, hurricanes, floods or other natural disasters; (6) any Effect consisting of or to the extent resulting from any action taken by the Company or its Subsidiaries that is required by this Agreement; or (7) including any change in the composition of the Company’s Board of Directors pursuant to Section 1.3(a); providedgeneral legal, howeverregulatory, that with respect to clauses (1)political, (4economic or business conditions) and (5), such Effect does not have a materially disproportionate and adverse effect on the Company and its Subsidiaries, taken as a whole, relative to most other similarly situated, comparable companies and their respective subsidiaries, taken as a whole, in the industry in which the Company and its Subsidiaries operate; providedconduct business, further(B) the announcement of the execution of this Agreement or pendency (but not the Closing) of the transactions contemplated hereby, that(C) any change in the market price or trading volume of the Company Common Stock, any failure to meet internal the IDSs or published projections, forecasts or revenue or earning predictions for any period shall not, in and the Subordinated Notes (provided that the underlying cause of itself, such change may constitute a Company Material Adverse Effect), (D) any failure to meet any revenue or earnings targets or projections of the Company (provided that the underlying cause of such failure may constitute a Company Material Adverse Effect), (E) any change in GAAP or (F) to the extent they do not have a materially disproportionate effect on the Company and its Subsidiaries taken as a whole, any natural disaster or calamity, or act of terrorism, sabotage, military action or war or any escalation or worsening thereof (in each case, threatened, pending or declared).

Organization, Standing and Corporate Power. (a) Each of the Company and each of its Subsidiaries is a corporation duly incorporated or organized, validly existing and in good standing (or equivalent status) under the applicable Law laws of the state or jurisdiction of its incorporation or organizationorganization and has the requisite corporate power and authority to carry on its business as now being conducted. Each of the Company and each of its Subsidiaries has all requisite power and authority to own, lease and operate its properties and assets and to carry on its business as it is now being conducted and is duly qualified or licensed or qualified to do business and is in good standing (or equivalent status) as a foreign corporation or other entity in each jurisdiction in which the nature of the its business or activities conducted by it the ownership or the character leasing of its properties makes such qualification or location of the properties and assets ownedlicensing necessary, leased or operated by it requires other than in such license or qualification, except jurisdictions where the failure to be so licensed, qualified or licensed (individually or in good standing (or equivalent statusthe aggregate) has not had and would could not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. For purposes of this Agreement, “Company Material Adverse Effect” shall mean any change, event, development, circumstance or occurrence (each, an “Effect”i) that, individually or when taken together with all other Effects, (x) has have a material adverse effect on the results of operations, condition (financial or otherwise), business or assets results of operations of the Company and its Subsidiaries, Subsidiaries taken as a whole, or (yii) a material adverse effect on impair the Company’s ability of any party hereto to perform its obligations, obligations under this Agreement or consummate (iii) prevent or materially delay consummation of any of the Transactionstransactions contemplated by this Agreement (a "Company Material Adverse Effect") (provided that a Company Material Adverse Effect shall not be deemed to have occurred as a result of (i) any events or conditions affecting the economy or the Company's industry in general or (ii) any events or conditions resulting from the execution and/or announcement of this Agreement). The Company has delivered to Parent complete and correct copies of its articles of organization (the "Articles of Organization") and by-laws and equivalent organizational documents of its Subsidiaries, in accordance with each case as amended to the terms date of this Agreement. For purposes of this Agreement, provided, however, that in no event shall any of the following, either alone or in combination, be deemed to constitute, a Company Material Adverse Effect: (1) changes in conditions in the United States or global economy or capital or financial markets generally, including changes in interest or exchange rates; (2) any Effect caused by the announcement, pendency or performance of this Agreement, the consummation of the Transactions or the identity of Parent; (3) any change in the trading prices or trading volume of the Company Common Stock (provided that the exception in this clause (3) shall not prevent or otherwise affect a determination that any Effect underlying such change has resulted in, or contributed to, a Company Material Adverse Effect; (4) acts of war, sabotage or terrorism, or any escalation or worsening "Subsidiary" of any such acts of war, sabotage or terrorism; (5) earthquakes, hurricanes, floods or other natural disasters; (6) any Effect consisting of or to the extent resulting from any action taken by the Company or its Subsidiaries that is required by this Agreement; or (7) any change in the composition of the Company’s Board of Directors pursuant to Section 1.3(a); provided, however, that with respect to clauses (1), (4) and (5), such Effect does not have a materially disproportionate and adverse effect on the Company and its Subsidiaries, taken as a whole, relative to most other similarly situated, comparable companies and their respective subsidiaries, taken as a whole, in the industry in which the Company and its Subsidiaries operate; provided, further, that, any failure to meet internal or published projections, forecasts or revenue or earning predictions for any period shall not, in and of itself, constitute a Company Material Adverse Effect.Person means

Organization, Standing and Corporate Power. (a) Each of the Company and its Subsidiaries is duly incorporated or organized, validly existing and in good standing (or equivalent status) under the applicable Law Laws of the state or jurisdiction of its incorporation or organization. Each of the Company organization and its Subsidiaries has all requisite power and authority to own, lease and operate its properties and assets and to carry on its business as it is now being conducted conducted. Each of the Company and its Subsidiaries is duly licensed or qualified to do business and is in good standing (or equivalent status) as a foreign corporation or other entity in each jurisdiction in which the nature of the business or activities conducted by it or the character or location of the properties and assets owned, leased or operated by it requires such license or qualification, except where the failure to be so licensed, qualified or in good standing (or equivalent status) has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. For purposes of this Agreement, “Company Material Adverse Effect” shall mean any change, event, violation, inaccuracy, development, circumstance or occurrence (each, an “Effect”) that, individually or when taken together with all other Effects, (x) has a material adverse effect on the results of operations, condition (financial or otherwise)condition, business or assets of the Company and its Subsidiaries, taken as a whole, or (y) a material adverse effect on the Company’s ability to perform its obligations, or consummate the Transactions, in accordance with the terms of this Table of Contents Agreement, provided, however, that in no event shall any of the following, either alone or in combination, be deemed to constitute, nor shall any of the following be taken into account in determining whether there has been or will be, a Company Material Adverse Effect: (1) changes in conditions in the United States or global economy or capital or financial markets generally, including changes in interest or exchange rates; , (2) changes in general legal, regulatory, political, economic or business conditions or changes in GAAP or interpretations thereof that, in each case, generally affect industries in which the Company or its Subsidiaries conduct business, (3) any Effect proximately caused by the announcement, pendency or performance of this Agreement, Agreement or the consummation of the Transactions or the identity of Parent; , (34) any change in the trading prices or trading volume of the Company Common Stock (provided that the exception in this clause (34) shall not prevent or otherwise affect a determination that any Effect underlying such change has resulted in, or contributed to, a Company Material Adverse Effect; ), (45) acts of war, sabotage or terrorism, or any escalation or worsening of any such acts of war, sabotage or terrorism; , (56) earthquakes, hurricanes, floods or other natural disasters; , (67) any Effect consisting of or to the extent resulting from any action taken by the Company or its Subsidiaries that is required contemplated by this Agreement; Agreement or in accordance with either of the Collaboration Agreements or with Parent’s written consent, (8) shareholder litigation alleging a breach of fiduciary duty in connection with this Agreement or the Transactions taken by itself (provided that the exception in this clause (8) shall not prevent or otherwise affect a determination that any facts giving rise to such litigation has resulted in, or contributed to, a Company Material Adverse Effect), or (79) any change in the composition of the Company’s Board of Directors of the Company pursuant to Section 1.3(a); provided, however, that with respect to clauses (1), (42) and (5), such Effect does not have a materially disproportionate and adverse effect on the Company and its Subsidiaries, taken as a whole, relative to most other similarly situated, comparable companies and their respective subsidiaries, taken as a whole, in the industry in which the Company and its Subsidiaries operate; provided, further, that, any failure to meet internal or published projections, forecasts or revenue or earning predictions for any period shall not, in and of itself, constitute a Company Material Adverse Effect.

Organization, Standing and Corporate Power. (a) Each of the The Company and its Subsidiaries is a corporation duly incorporated or organized, validly existing and in good standing (or equivalent status) under the applicable Law Laws of the state or jurisdiction State of its incorporation or organization. Each of the Company Delaware and its Subsidiaries has all requisite corporate power and authority necessary to own, own or lease and operate all of its properties and assets and to carry on its business as it is now being conducted and conducted. The Company is duly licensed or qualified to do business and is in good standing (or equivalent status) as a foreign corporation or other entity in each jurisdiction in which the nature of the business or activities conducted by it or the character or location of the properties and assets owned, owned or leased or operated by it requires makes such license licensing or qualificationqualification necessary, except where the failure to be so licensed, qualified or in good standing (or equivalent status) has not had and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect. For purposes of this Agreement, “Company Material Adverse Effect” shall mean means any effect, change, event, state of fact, development, circumstance or occurrence (eachwhether or not constituting any breach of a representation, an “Effect”warranty, covenant or agreement set forth in this Agreement) that, individually or when taken together in the aggregate with all other Effectseffects, changes, events, circumstances, states of fact or developments, would or would reasonably be expected to (xi) has have a material adverse effect on the business, results of operations, assets, liabilities or financial condition (financial or otherwise), business or assets of the Company and its Subsidiaries, Subsidiaries taken as a whole, or (yii) a material adverse effect on prevent or materially impair or delay the Company’s ability to perform its obligations, or consummate consummation of the Transactions, other than, in accordance with the terms case of this Agreementclause (i), providedany effect, howeverchange, that in no event shall event, state of fact, development, circumstance or occurrence (A) generally affecting (1) any of the followingindustries in which the Company and its Subsidiaries operate or (2) the economy, either alone credit or in combinationfinancial or capital markets, be deemed to constitute, a Company Material Adverse Effect: (1) changes in conditions in the United States or global economy or capital or financial markets generallyelsewhere in the world, including changes in interest or exchange rates; , or (B) to the extent arising out of, resulting from or attributable to (1) changes in Law (or in the interpretation thereof) or in generally accepted accounting principles or in accounting standards (or in the interpretation thereof), (2) any Effect caused by the announcement, pendency or performance of this Agreement, Agreement or the Transactions or the consummation of the Transactions (other than for purposes of any representation or the identity of Parent; warranty contained in Section 4.3(c) and 4.4), (3) any change in the trading prices or trading volume of the Company Common Stock (provided that the exception in this clause (3) shall not prevent or otherwise affect a determination that any Effect underlying such change has resulted in, or contributed to, a Company Material Adverse Effect; (4) acts of war, sabotage or terrorismterrorism occurring, or any escalation or worsening of any such acts of war, sabotage or terrorism; , (54) earthquakes, hurricanes, floods tornados or other natural disasters; , (65) any Effect consisting of or to the extent resulting from any action taken by the Company or its Subsidiaries that is required by this Agreement; Agreement (other than with respect to the Company’s obligations to comply with Section 6.1(a)) or with Parent’s written consent or at Parent’s written request, (6) any decline in the market price, or change in trading volume, of the capital stock of the Company, (7) any failure to meet any internal or public projections, forecasts or estimates of revenue or earnings in and of itself (provided that the exceptions in clauses (6) and (7) shall not prevent or otherwise affect a determination that the underlying cause of any such decline or failure is a Company Material Adverse Effect), (8) the existence of any litigation, in and of itself (but, for the avoidance of doubt, not the facts or circumstances underlying such litigation), arising from allegations of a breach of fiduciary duty or other violation of applicable Law relating to this Agreement or the Transactions, or (9) any change in in, or loss of, the composition relationship of the Company’s Board or its Subsidiaries’ customers, suppliers, vendors, lenders or employees as a result of Directors pursuant to Section 1.3(athe execution, pendency or performance of this Agreement or the consummation of the Transactions (other than for purposes of any representation or warranty contained in Sections 4.3(c), 4.4 and 4.18); provided, however, that with respect any effect, change, event, circumstance or occurrence referred to in clauses (1A) or (B)(1), (3) or (4) shall not be disregarded and (5)shall be taken into account in determining whether or not there has been a Company Material Adverse Effect if any such effect, such Effect does not have a materially disproportionate and adverse effect on change, event, circumstance, state of fact or development adversely affects the Company and its Subsidiaries, taken as a whole, relative in a materially disproportionate manner as compared to most other similarly situated, comparable companies and their respective subsidiaries, taken as a whole, participants in the industry industries in which the Company and its Subsidiaries operate; provided, further, that, any failure to meet internal or published projections, forecasts or revenue or earning predictions for any period shall not, in and of itself, constitute a Company Material Adverse Effect.

Organization, Standing and Corporate Power. (a) Each of the Company and its Subsidiaries is a corporation or other entity duly incorporated or organized, validly existing and in good standing (or equivalent status) under the applicable Law Laws of the state jurisdiction in which it is incorporated or jurisdiction of its incorporation or organization. Each of the Company organized and its Subsidiaries has all requisite corporate power and authority necessary to own, own or lease and operate all of its properties and assets and to carry on its business as it is now being conducted and as currently proposed by its management to be conducted. Each of the Company and its Subsidiaries is duly licensed or qualified to do business and is in good standing (or equivalent status) as a foreign corporation or other entity in each jurisdiction in which the nature of the business or activities conducted by it or the character or location of the properties and assets owned, owned or leased or operated by it requires makes such license licensing or qualificationqualification necessary, except where the failure to be so licensed, qualified or in good standing (standing, individually or equivalent status) in the aggregate, has not had and would not reasonably be expected to have, individually or in have a Material Adverse Effect (as defined below) on the aggregate, a Company (“Company Material Adverse Effect”). For purposes of this Agreement, “Company Material Adverse Effect” shall mean means, with respect to any changePerson, event, development, circumstance or occurrence (each, an “Effect”) that, individually or when taken together with all other Effects, (x) has a material adverse effect on the results of operations, condition (financial or otherwise), business business, assets, liabilities or assets results of the Company operations of such Person and its Subsidiaries, taken as a whole, or (y) a material adverse effect on the Company’s ability to perform its obligations, or consummate the Transactions, in accordance with the terms of this Agreement, ; provided, however, that in no event shall any none of the followingfollowing shall be deemed by itself or by themselves, either alone or in combination, to constitute a Material Adverse Effect on such Person: (i) any change in the market price or trading volume of the securities of such Person (it being understood and agreed that the facts and circumstances giving rise to such change that are not otherwise excluded from the definition of Material Adverse Effect may be deemed to constitute, taken into account in determining whether there has been a Company Material Adverse Effect: (1) changes in conditions in the United States or global economy or capital or financial markets generally, including changes in interest or exchange rates); (2ii) with respect to any Effect caused by Person, any adverse effect resulting from or arising out of the execution, delivery, announcement or performance of its obligations under this Agreement or the announcement, pendency or performance of this Agreement, the anticipated consummation of the Transactions or the identity of ParentMerger; (3iii) any change arising out of conditions affecting the economy or the capital markets or the industry of such Person in general which does not affect such Person in a disproportionate manner relative to other participants in the trading prices economy, capital markets or trading volume of the Company Common Stock (provided that the exception in this clause (3) shall not prevent or otherwise affect a determination that any Effect underlying such change has resulted inindustry, or contributed to, a Company Material Adverse Effectrespectively; (4iv) acts of war, sabotage or terrorism, or any escalation or worsening of any such acts of war, sabotage or terrorism; (5) earthquakes, hurricanes, floods or other natural disasters; (6A) any Effect consisting loss of or adverse impact on relationship with employees, customers, suppliers or distributors, (B) any delays in or cancellations of orders for the products or services of such Person and (C) any reduction in revenues, in each case to the extent resulting from any action taken by attributable to the Company announcement or its Subsidiaries that is required by this Agreement; or (7) any change in the composition pendency of the Company’s Board of Directors pursuant to Section 1.3(a)Merger; provided, however, that with respect to clauses (1), (4v) and (5), such Effect does not have a materially disproportionate and adverse effect on the Company and its Subsidiaries, taken as a whole, relative to most other similarly situated, comparable companies and their respective subsidiaries, taken as a whole, in the industry in which the Company and its Subsidiaries operate; provided, further, that, any failure to meet internal or published projections, forecasts or revenue or earning predictions for any period shall notearnings projections, in and of itself, constitute for any period ending (or for which earnings are released) on or after the date hereof (it being understood and agreed that the facts and circumstances giving rise to such change that are not otherwise excluded from the definition of Material Adverse Effect may be taken into account in determining whether there has been a Company Material Adverse Effect); (vi) any change resulting from changes in (A) applicable Law or (B) GAAP or formal pronouncements by standards bodies related thereto; (vii) acts of war or terrorism; (viii) earthquakes, hurricanes, tornadoes or other natural disasters; or (ix) stockholder class action or derivative litigation arising from allegations of breach of fiduciary duty relating to this Agreement or false or misleading public disclosure (or omission) in connection with this Agreement.

Organization, Standing and Corporate Power. Galileo (a) Each of the Company and its Subsidiaries is a corporation duly incorporated or organized, validly existing and in good standing (or has equivalent status) status under the applicable Law laws of the state or jurisdiction of its incorporation or organization. Each of the Company Xxxxxxxx Islands, and its Subsidiaries has all requisite corporate power and authority to own, lease and operate its properties and assets and to carry on its business as it is now being conducted and as proposed to be conducted, and (b) is duly qualified or licensed or qualified to do business and is in good standing (or has equivalent status) as a foreign corporation or other entity status in each jurisdiction in which the nature of the business or activities conducted by it or the character or location of the properties and assets ownedit owns, leased operates or operated by it requires leases or the nature of its activities makes such license or qualificationqualification necessary, except where except, in the failure case of this clause (b), for such failures to be so licensedqualified, qualified licensed or in good standing (or equivalent status) has as have not had had, and would are not reasonably be expected likely to have, individually or in the aggregate, a Company Galileo Material Adverse Effect. For purposes of this Agreement, the term “Company Galileo Material Adverse Effect” shall mean means any change, event, developmenteffect, circumstance circumstance, occurrence, state of facts or occurrence (each, an “Effect”) development that, individually or when taken together in the aggregate with all such other Effectschanges, events, effects, circumstances, occurrences, states of facts and developments, is or is reasonably likely to be materially adverse to (xi) has a material adverse effect on the business, assets (including vessels), financial condition or results of operations, condition (financial or otherwise), business or assets operations of the Company Galileo and its Subsidiaries, taken as a whole, or (yii) a material adverse effect on the Company’s ability of Galileo to perform its obligations, or consummate the Transactions, in accordance with transactions contemplated by this Agreement on a reasonably prompt basis; provided that the terms of this Agreement, provided, however, that in no event following shall any of the following, either alone or in combination, not be deemed to constitute, constitute a Company “Galileo Material Adverse Effect”: any change, event, effect, circumstance, occurrence, state of facts, or development to the extent caused by or resulting from (1A) changes changes, events, circumstances or developments in prevailing economic or market conditions in the United States or global economy or capital or financial markets generallyany other jurisdiction in which Galileo and its Subsidiaries, including changes in interest or exchange rates; taken as a whole, have substantial business operations (2) any Effect caused by the announcement, pendency or performance of this Agreement, the consummation of the Transactions or the identity of Parent; (3) any change in the trading prices or trading volume of the Company Common Stock (provided that the exception in this clause (3) shall not prevent or otherwise affect a determination that any Effect underlying such change has resulted in, or contributed to, a Company Material Adverse Effect; (4) acts of war, sabotage or terrorism, or any escalation or worsening of any such acts of war, sabotage or terrorism; (5) earthquakes, hurricanes, floods or other natural disasters; (6) any Effect consisting of or except to the extent resulting from any action taken by the Company or its Subsidiaries that is required by this Agreement; or (7) any change in the composition of the Company’s Board of Directors pursuant to Section 1.3(a); provided, however, that with respect to clauses (1), (4) and (5), such Effect does not those changes have a materially disproportionate and adverse effect on the Company Galileo and its Subsidiaries, taken as a whole, relative to most other similarly situated, comparable companies Xxxxxx and their respective subsidiariesits Subsidiaries, taken as a whole, in which case the industry incremental disproportionate impact(s) may be deemed either alone or in combination to constitute, or be taken into account in determining whether there has been, or is reasonably likely to be, a Galileo Material Adverse Effect), (B) changes, events, circumstances or developments occurring after the date hereof, affecting the industries in which Xxxxxx and Galileo operate generally (except to the extent those changes or events have a materially disproportionate effect on Galileo and its Subsidiaries, taken as a whole, relative to Xxxxxx and its Subsidiaries, taken as a whole, in which case the incremental disproportionate impact(s) may be deemed either alone or in combination to constitute, or be taken into account in determining whether there has been, or is reasonably likely to be, a Galileo Material Adverse Effect), (C) changes announced or effective after the date hereof in GAAP applicable to Galileo and its Subsidiaries (except to the extent those changes have a materially disproportionate effect on Galileo and its Subsidiaries, taken as a whole, relative to Xxxxxx and its Subsidiaries, taken as a whole, in which case the incremental disproportionate impact(s) may be deemed either alone or in combination to constitute, or be taken into account in determining whether there has been, or is reasonably likely to be, a Galileo Material Adverse Effect), (D) changes announced or effective after the date hereof, in laws, rules or regulations of general applicability or interpretations thereof by any Governmental Entity (except to the extent those changes have a materially disproportionate effect on Galileo and its Subsidiaries, taken as a whole, relative to Xxxxxx and its Subsidiaries, taken as a whole, in which case the incremental disproportionate impact(s) may be deemed either alone or in combination to constitute, or be taken into account in determining whether there has been, or is reasonably likely to be, a Galileo Material Adverse Effect), (E) the announcement and pendency of this Agreement and the transactions contemplated hereby, or (F) any outbreak of major hostilities in which the Company United States is involved or any act of terrorism within the United States or directed against its facilities or citizens wherever located; and its Subsidiaries operate; provided, further, thatthat in no event shall a change in the trading prices or volume of Galileo’s capital stock, any failure to meet internal or published projections, forecasts or revenue or earning predictions for any period shall not, in and of by itself, constitute be considered a Company “Galileo Material Adverse Effect. For the avoidance of doubt, the parties agree that the terms “material,” “materially” or “materiality” as used in this Agreement with an initial lower case “m” shall have their respective customary and ordinary meanings, without regard to the meanings ascribed to Galileo Material Adverse Effect in the prior sentence of this paragraph or Xxxxxx Material Adverse Effect in Section 4.1. Galileo has delivered or made available to Xxxxxx copies of Galileo’s Articles of Incorporation and By-laws.

Organization, Standing and Corporate Power. Each of the Company and its Subsidiaries (ai) is a corporation or limited liability company, as the case may be, duly organized, validly existing and in good standing under the Laws of the jurisdiction in which it is incorporated or formed, as the case may be, and (ii) has all requisite corporate or limited liability company, as the case may be, power and authority to carry on its business as now being conducted. Each of the Company and its Subsidiaries is duly incorporated qualified or organized, validly existing and in good standing (or equivalent status) under the applicable Law of the state or jurisdiction of its incorporation or organization. Each of the Company and its Subsidiaries has all requisite power and authority to own, lease and operate its properties and assets and to carry on its business as it is now being conducted and is duly licensed or qualified to do business and is in good standing (or equivalent status) as a foreign corporation or other entity in each jurisdiction the jurisdictions set forth in Section 3.02 of the Company Disclosure Letter, which jurisdictions are all of the jurisdictions in which the nature of the its business or activities conducted by it the ownership, leasing or the character operation of its properties or location of the properties and other assets ownedmakes such qualification or licensing necessary, leased or operated by it requires other than in such license or qualification, except jurisdictions where the failure to be so licensed, qualified or licensed individually or in good standing (or equivalent status) the aggregate has not had and would is not reasonably be expected likely to have, individually or in the aggregate, have a Company Material Adverse Effect. For purposes of this Agreement, “Company "Material Adverse Effect” " shall mean any state of facts, change, event, development, circumstance effect, condition or occurrence (eachany such item, an “"Effect”") that, individually that is or when taken together with all other Effects, (x) has is reasonably likely to adversely affect in a material adverse effect on respect the results of operationsbusiness, assets, liabilities, properties, condition (financial or otherwise), business results of operations or assets prospects of the Company and its Subsidiaries, Subsidiaries taken as a wholewhole or that impairs in any material respect the ability of the Company to perform its obligations under this Agreement or prevents or materially impedes, interferes with, hinders or delays the consummation of the Merger or any of the other transactions contemplated hereby; provided that, in any such case referred to in clause (i) or (ii) the following shall not be deemed "material" or to have a "Material Adverse Effect": any change or event caused by or resulting from (A) actions or omissions of the Company or Parent taken with the prior written consent of the other or required in this Agreement, (B) the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby or the announcement thereof, or (yC) a material adverse effect on any outbreak of major hostilities in which the Company’s ability to perform United States is involved or any act of terrorism within the United States or directed against its obligations, facilities or consummate the Transactions, in accordance with the terms of this Agreement, citizens wherever located; and provided, howeverfurther, that in no event shall any of the following, either alone or in combination, be deemed to constitute, a Company Material Adverse Effect: (1) changes in conditions in the United States or global economy or capital or financial markets generally, including changes in interest or exchange rates; (2) any Effect caused by the announcement, pendency or performance of this Agreement, the consummation of the Transactions or the identity of Parent; (3) any change in the trading prices price of the Company's capital stock, by itself, be considered material or trading volume constitute a Material Adverse Effect. Section 3.01 of the Company Common Stock Disclosure Letter sets forth the officers and directors of the Company and each of its Subsidiaries. The Company has provided to Parent true and complete copies of the certificate of incorporation of the Company as in effect on the date hereof ("Company Certificate") and the By-laws of the Company as in effect on the date hereof ("Company By-laws") and, provided that the exception in this clause (3) shall not prevent or otherwise affect a determination that any Effect underlying such change has resulted in, or contributed to, a Company Material Adverse Effect; (4) acts of war, sabotage or terrorism, or any escalation or worsening of any such acts of war, sabotage or terrorism; (5) earthquakes, hurricanes, floods or other natural disasters; (6) any Effect consisting of or Parent access to the extent resulting from any action taken by the Company or its Subsidiaries that is required by this Agreement; or (7) any change in the composition minutes of all of the Company’s meetings of the stockholders, the Board of Directors pursuant to Section 1.3(a); provided, however, that with respect to clauses (1), (4) and (5), such Effect does not have a materially disproportionate and adverse effect on each committee of the Board of Directors of the Company and its Subsidiariesheld since January 1, taken as a whole, relative to most other similarly situated, comparable companies and their respective subsidiaries, taken as a whole, in the industry in which the Company and its Subsidiaries operate; provided, further, that, any failure to meet internal or published projections, forecasts or revenue or earning predictions for any period shall not, in and of itself, constitute a Company Material Adverse Effect2000.

Organization, Standing and Corporate Power. (a) Each of the Company and its Subsidiaries is duly incorporated or organized, validly existing and in good standing (or equivalent status) under the applicable Law Laws of the state or jurisdiction of its incorporation or organization. Each of the Company organization and its Subsidiaries has all requisite power and authority to own, lease and operate its properties and assets and to carry on its business as it is now being conducted conducted. Each of the Company and its Subsidiaries is duly licensed or qualified to do business and is in good standing (or equivalent status) as a foreign corporation or other entity in each jurisdiction in which the nature of the business or activities conducted by it or the character or location of the properties and assets owned, leased or operated by it requires such license or qualification, except where the failure to be so licensed, qualified or in good standing (or equivalent status) has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. For purposes of this Agreement, “Company Material Adverse Effect” shall mean any change, event, violation, inaccuracy, development, circumstance or occurrence (each, an “Effect”) that, individually or when taken together with all other Effects, (x) has a material adverse effect on the results of operations, condition (financial or otherwise)condition, business or assets of the Company and its Subsidiaries, taken as a whole, or (y) a material adverse effect on the Company’s ability to perform its obligations, or consummate the Transactions, in accordance with the terms of this Agreement, provided, however, that in no event shall any of the following, either alone or in combination, be deemed to constitute, nor shall any of the following be taken into account in determining whether there has been or will be, a Company Material Adverse Effect: (1) changes in conditions in the United States or global economy or capital or financial markets generally, including changes in interest or exchange rates; , (2) changes in general legal, regulatory, political, economic or business conditions or changes in GAAP or interpretations thereof that, in each case, generally affect industries in which the Company or its Subsidiaries conduct business, (3) any Effect proximately caused by the announcement, pendency or performance of this Agreement, Agreement or the consummation of the Transactions or the identity of Parent; , (34) any change in the trading prices or trading volume of the Company Common Stock (provided that the exception in this clause (34) shall not prevent or otherwise affect a determination that any Effect underlying such change has resulted in, or contributed to, a Company Material Adverse Effect; ), (45) acts of war, sabotage or terrorism, or any escalation or worsening of any such acts of war, sabotage or terrorism; , (56) earthquakes, hurricanes, floods or other natural disasters; , (67) any Effect consisting of or to the extent resulting from any action taken by the Company or its Subsidiaries that is required contemplated by this Agreement; Agreement or in accordance with either of the Collaboration Agreements or with Parent’s written consent, (8) shareholder litigation alleging a breach of fiduciary duty in connection with this Agreement or the Transactions taken by itself (provided that the exception in this clause (8) shall not prevent or otherwise affect a determination that any facts giving rise to such litigation has resulted in, or contributed to, a Company Material Adverse Effect), or (79) any change in the composition of the Company’s Board of Directors of the Company pursuant to Section 1.3(a); provided, however, that with respect to clauses (1), (42) and (5), such Effect does not have a materially disproportionate and adverse effect on the Company and its Subsidiaries, taken as a whole, relative to most other similarly situated, comparable companies and their respective subsidiaries, taken as a whole, in the industry in which the Company and its Subsidiaries operate; provided, further, that, any failure to meet internal or published projections, forecasts or revenue or earning predictions for any period shall not, in and of itself, constitute a Company Material Adverse Effect.

Organization, Standing and Corporate Power. (a) Each of the Company and its Subsidiaries is a corporation duly incorporated or organized, validly existing and and, to the extent applicable in such jurisdiction, in good standing (or equivalent status) under the applicable Law Laws of the state or jurisdiction of its incorporation or organization. Each of the Company in which it is incorporated and its Subsidiaries has all requisite corporate power and authority necessary to own, own or lease and operate all of its properties and assets and to carry on its business as it is now being conducted and as currently proposed by its management to be conducted. Each of the Company and its Subsidiaries is duly licensed or qualified to do business and is in good standing (or equivalent status) as a foreign corporation or other entity in each U.S. state and, to the extent applicable in such jurisdiction, each other jurisdiction in which the nature of the business or activities conducted by it or the character or location of the properties and assets owned, owned or leased or operated by it requires makes such license licensing or qualificationqualification necessary, except where the failure to be so licensed, qualified or in good standing (standing, individually or equivalent status) in the aggregate, has not had and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect. For purposes of this Agreement, “the term "Company Material Adverse Effect” " shall mean any change, event, developmentoccurrence or state of facts which has had, circumstance or occurrence (eachwould reasonably be expected to have, an “Effect”) that, individually or when taken together with all other Effects, (x) has a material adverse effect on (i) the business, assets, results of operations, operations or financial condition (financial or otherwise), business or assets of the Company and its Subsidiaries, Subsidiaries taken as a whole, or (y) a material adverse effect on the Company’s ability to perform its obligations, or consummate the Transactions, in accordance with the terms of this Agreement, ; provided, however, that in no event shall any none of the following, following shall be deemed either alone or in combination, be deemed combination to constitute, and none of the following shall be taken into account in determining whether there has been or will be a Company Material Adverse Effect: (1) changes in conditions in any effect, change, event, occurrence or state of facts relating to the United States U.S. or the global economy or capital or financial markets generally, including changes in interest or exchange ratesgeneral and not specifically relating to (and to the extent not disproportionately affecting) the Company; (2) any Effect caused by effect, change, event, occurrence or state of facts resulting from any reduction in the announcementU.S. federal budget for Homeland Security programs and not specifically relating to (and to the extent not disproportionately affecting) the Company, pendency or performance of this Agreement, the consummation of the Transactions or the identity of Parent; (3) any change in effect, change, event, occurrence or state of facts that arises out of or results from the trading prices announcement or trading volume pendency of this Agreement or any of the Company Common Stock (provided that the exception in this clause (3) shall not prevent or otherwise affect a determination that any Effect underlying such change has resulted in, or contributed to, a Company Material Adverse EffectTransactions; and (4) acts any effect, change, event, occurrence or state of war, sabotage or terrorism, or any escalation or worsening of any such acts of war, sabotage or terrorism; (5) earthquakes, hurricanes, floods or other natural disasters; (6) any Effect consisting of or to the extent facts resulting from (x) any action taken by the Company or its Subsidiaries that is required by with Parent's express written consent or (y) the disposition of the Company NDT Business in accordance with this Agreement or (ii) the Company's ability to perform its obligations under this Agreement or consummate the Transactions. Notwithstanding anything to the contrary contained in this Agreement; or (7, for purposes of determining whether the conditions set forth in Sections 6.2(a) any change in the composition of the Company’s Board of Directors and 6.2(d) have been satisfied and whether Parent may terminate this Agreement pursuant to Section 1.3(a); provided, however, that with respect to clauses (17.1(c)(i), (4) and (5), such Effect does not have a materially disproportionate and adverse effect on the Company and its Subsidiaries, taken as a whole, relative to most other similarly situated, comparable companies and their respective subsidiaries, taken as a whole, in the industry in which the Company and its Subsidiaries operate; provided, further, that, any failure to meet internal or published projections, forecasts or revenue or earning predictions for any period shall not, in and of itself, constitute a "Company Material Adverse Effect" shall be deemed to have occurred if (and only if) the applicable change, event, occurrence or state of facts (or aggregation of changes, events, occurrences or state of facts) has resulted in or would reasonably be expected to result in liability to Parent or its Subsidiaries (including, for purposes hereof, the Company (or its Subsidiaries)) or diminution in the value of the Company (including its Subsidiaries) (however arising, including as a result of a diminution of the current or future revenues, earnings or net asset value of the Company (including its Subsidiaries)) of $90,000,000 or more in the aggregate.

Organization, Standing and Corporate Power. (a) Each The Company and each of its Subsidiaries is a corporation duly organized, validly existing and, in the case of the Company and its Subsidiaries is duly incorporated or organizedU.S. Subsidiaries, validly existing and in good standing (or equivalent status) under the applicable Law Laws of the state or jurisdiction of its incorporation or organization. Each of the Company in which it is incorporated and its Subsidiaries has all requisite corporate power and authority necessary to own, own or lease and operate all of its properties and assets and to carry on its business as it is now being conducted conducted. The Company and each of its U.S. Subsidiaries is duly licensed or qualified to do business and is in good standing (or equivalent status) as a foreign corporation or other entity in each jurisdiction in which the nature of the business or activities conducted by it or the character or location of the properties and assets owned, owned or leased or operated by it requires makes such license licensing or qualificationqualification necessary, except where the failure to be so licensed, qualified or in good standing (standing, individually or equivalent status) in the aggregate, has not had and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect. For purposes of this Agreement, the term “Company Material Adverse Effect” shall mean any change, event, development, occurrence or circumstance or occurrence which (each, an “Effect”) that, individually or when taken together with all other Effects, (xi) has a material adverse effect on the business, results of operations, operations or financial condition (financial or otherwise), business or assets of the Company and its Subsidiaries, Subsidiaries taken as a whole, whole or (yii) a material adverse effect on prohibits the Company’s ability to perform its obligations, or consummate consummation of the Transactions, in accordance with the terms of this Agreement, ; provided, however, that in no event shall any none of the following, following shall be deemed either alone or in combination, be deemed combination to constitute, and none of the following shall be taken into account in determining whether there has been or will be, a Company Material Adverse Effect: (1A) changes any effect, change, event, occurrence or circumstance relating to the U.S. or any foreign economy in conditions general to the extent that such effect, change, event, occurrence or circumstance does not have a materially disproportionate effect on the Company and its Subsidiaries taken as a whole; (B) any effect, change, event, occurrence or circumstance relating to the industries in which the Company operates to the extent that such effect, change, event, occurrence or circumstance does not have a materially disproportionate effect on the Company and its Subsidiaries taken as a whole; (C) any effect, change, event, occurrence or circumstance relating to fluctuations in the United States or global economy or capital or financial markets generally, including changes in interest or exchange ratesvalue of currencies; (2D) any Effect caused by effect, change, event, occurrence or circumstance relating to acts of terrorism, war, national or international calamity or any other similar event to the announcementextent that such effect, pendency change, event, occurrence or performance circumstance does not have a materially disproportionate effect on the Company and its Subsidiaries taken as a whole; (E) any effect, change, event, occurrence or circumstance to the extent arising out of or resulting from the announcement of this Agreement, the consummation existence of this Agreement or the fact that any of the Transactions may be consummated (including any effect, change, event, occurrence or circumstance resulting from or relating to any litigation, any loss of or delay in placing customer orders, any disruption in supplier, distributor, reseller or similar relationships or any departure or loss of employees, in each case to the extent arising out of or resulting from the announcement of this Agreement, the existence of this Agreement or the identity fact that any of Parentthe Transactions may be consummated); (3F) any change in the trading prices or trading volume failure of the Company Common Stock to meet internal or analysts’ expectations or projections (provided it being understood, however, that the exception in underlying circumstances giving rise to such failure may be taken into account unless otherwise excluded pursuant to this clause (3) shall not prevent or otherwise affect a determination that any Effect underlying such change has resulted in, or contributed to, a Company Material Adverse Effectparagraph); (4) acts of war, sabotage or terrorism, or any escalation or worsening of any such acts of war, sabotage or terrorism; (5) earthquakes, hurricanes, floods or other natural disasters; (6G) any Effect consisting of effect, change, event, occurrence or to the extent circumstance resulting from any action taken by the Company or its Subsidiaries that is required with Parent’s consent or from compliance by the Company with the terms of this Agreement; or and (7H) any change in effect, change, event, occurrence or circumstance resulting from the composition failure of the Company’s Board of Directors pursuant to Section 1.3(a); provided, however, that with respect to clauses (1), (4) and (5), such Effect does not have a materially disproportionate and adverse effect on the Company and its Subsidiaries, taken as a whole, relative to most other similarly situated, comparable companies and their respective subsidiaries, taken as a whole, in the industry in which the Company and or its Subsidiaries operate; provided, further, that, to take any failure action referred to meet internal in Section 5.2 due to Parent’s unreasonable withholding of consent or published projections, forecasts or revenue or earning predictions for any period shall not, in and of itself, constitute a Company Material Adverse Effectdelaying its consent.

Organization, Standing and Corporate Power. (a) Each of the The Company and its Subsidiaries is a corporation duly incorporated or organized, validly existing and in good standing (or equivalent status) under the applicable Law Laws of the state or jurisdiction State of its incorporation or organizationOhio. Each of the The Company and its Subsidiaries has all requisite corporate power and authority necessary to own, own or lease and operate all of its properties and assets and to carry on its business as it is now being conducted and is duly licensed or qualified to do business and is in good standing (or equivalent status) as a foreign corporation or other entity in each jurisdiction in which the nature of the business or activities conducted by it or the character or location of the properties and assets owned, owned or leased or operated by it requires makes such license licensing or qualificationqualification necessary, except where the failure to be so licensed, qualified or in good standing (or equivalent status) has not had and would not reasonably be expected to havehave a Material Adverse Effect (as defined below) on the Company. (b) For purposes of this Agreement, “Material Adverse Effect” means any effect, change, event or occurrence (whether or not constituting any breach of a representation, warranty, covenant or agreement set forth in this Agreement) that, individually or in the aggregate with all other effects, changes, events or occurrences, has a material adverse effect on the business, results of operations, assets, liabilities or financial condition of the Company and its Subsidiaries taken as a whole; provided, however, that none of the following, and no effects, changes, events or occurrences, individually or in the aggregate, arising out of, resulting from or attributable to any of the following shall constitute or be taken into account in determining whether a Company Material Adverse Effect. For purposes of this Agreement, “Company Material Adverse Effect” shall mean any change, event, development, circumstance Effect has occurred or occurrence would reasonably be expected to occur: (each, an “Effect”A) that, individually or when taken together with all other Effects, conditions generally affecting (x1) has a material adverse effect on the results of operations, condition (financial or otherwise), business or assets of industry in which the Company and its Subsidiaries, taken as a wholeSubsidiaries operate, or (y2) a material adverse effect on the Company’s ability to perform its obligationseconomy, credit or consummate the Transactionsfinancial or capital markets, in accordance with the terms of this Agreement, provided, however, that in no event shall any of the following, either alone or in combination, be deemed to constitute, a Company Material Adverse Effect: (1) changes in conditions in the United States or global economy or capital or financial markets generallyelsewhere in the world, including changes in interest or exchange rates; , or (B) effects, changes, events or occurrences to the extent arising out of, resulting from or attributable to (1) actual or prospective changes after the date of this Agreement in Law or in generally accepted accounting principles or in accounting standards or in the interpretation or enforcement of any of the foregoing, or any changes or prospective changes in general legal, regulatory or political conditions, (2) any Effect caused by the announcement, pendency or performance announcement of this Agreement, Agreement or the consummation of the Transactions (other than for purposes of any representation or the identity of Parent; warranty contained in Section 3.3(c) and Section 3.4), (3) any change in the trading prices or trading volume of the Company Common Stock (provided that the exception in this clause (3) shall not prevent or otherwise affect a determination that any Effect underlying such change has resulted in, or contributed to, a Company Material Adverse Effect; (4) acts of warwar or military action, sabotage or terrorism, or any escalation or worsening of any such acts of warwar or military action, sabotage or terrorism; , (54) earthquakes, hurricanes, floods tornados or other natural disasters; , (65) any Effect consisting of or to the extent resulting from any action taken by the Company or its Subsidiaries (x) that is required by this Agreement; Agreement (other than with respect to the Company’s obligations to comply with Section 5.1(a) or Section 5.4), (y) taken with Parent’s written consent or (z) at Parent’s written request, (6) any change resulting or arising from the identity of, or any facts or circumstances relating to, Parent, Merger Sub or any of their respective Affiliates, (7) any change or prospective change in the composition of the Company’s Board credit ratings, (8) any decline in the market price, or change in trading volume, of Directors pursuant the capital stock of the Company or (9) any failure to Section 1.3(ameet any internal or public projections, forecasts, guidance, estimates of revenue, earnings, cash flow or cash position (it being understood that the exceptions in clauses (7), (8) and (9) shall not prevent or otherwise affect a determination that the underlying cause of any such decline or failure referred to therein (if not otherwise falling within any of the exceptions provided by clause (A) and clauses (B)(1) through (6) hereof) is a Material Adverse Effect); provided, however, that with respect any effect, change, event or occurrence referred to clauses in clause (1A) or clause (B)(1), (3) or (4) and (5)may be taken into account in determining whether or not there has been a Material Adverse Effect solely if such effect, such Effect does not have change, event or occurrence has a materially disproportionate and adverse effect on the Company and its Subsidiaries, taken as a whole, relative as compared to most other similarly situated, comparable companies and their respective subsidiaries, taken as a whole, participants in the industry in which the Company and its Subsidiaries operate; provided, further, that, any failure to meet internal operate (in which case only the incremental disproportionate impact or published projections, forecasts or revenue or earning predictions for any period shall not, impacts may be taken into account in and of itself, constitute determining whether a Company Material Adverse EffectEffect has occurred or would reasonably be expected to occur).

Organization, Standing and Corporate Power. (a) Each of the Company and its Subsidiaries is duly incorporated or organized, validly existing and in good standing (or equivalent status) under the applicable Law Laws of the state or jurisdiction of its incorporation or organization. Each of the Company in which it is organized and its Subsidiaries has all requisite power and authority to own, operate and lease and operate its properties and assets and to carry on its business as it is now being conducted conducted. (b) Each of the Company and its Subsidiaries is duly qualified or licensed or qualified to do business and is in good standing (or equivalent statusother than tax good-standing, as to which this representation is not made; representations about tax matters are set forth in Section 3.14) as a foreign corporation or other entity in each jurisdiction in which the nature of the its business or activities conducted by it the ownership, leasing or the character operation of its properties makes such qualification or location of the properties and assets ownedlicensing necessary, leased or operated by it requires other than in such license or qualification, except jurisdictions where the failure to be so licensed, qualified or licensed individually or in good standing (or equivalent status) the aggregate has not had and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect. For purposes of this Agreement, “Company Material Adverse Effect” shall mean any change, event, developmentoccurrence, violation, circumstance or occurrence (each, an “Effect”) that, individually effect having or when taken together with all other Effects, (x) has that is reasonably likely to have a material adverse effect on (i) the ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated hereby, or (ii) the business, assets (including intangible assets), Liabilities, financial condition or results of operations, condition (financial or otherwise), business or assets operations of the Company and its Subsidiaries, taken as a whole, except to the extent any change or effect arises out of, results from or is attributable to (ya) a material adverse effect on the Company’s ability to perform its obligations, or consummate the Transactions, in accordance with the terms of this Agreement, provided, however, that in no event shall any of the following, either alone or in combination, be deemed to constitute, a Company Material Adverse Effect: (1) changes change in conditions in the United States States, foreign or global economy or capital or financial markets generally, including changes any change in interest or exchange rates; (2) any Effect caused by the announcement, pendency or performance of this Agreementwhich, the consummation of the Transactions or the identity of Parent; (3) any change in the trading prices or trading volume of the Company Common Stock (provided that the exception in this clause (3) shall each, do not prevent or otherwise disproportionately affect a determination that any Effect underlying such change has resulted in, or contributed to, a Company Material Adverse Effect; (4) acts of war, sabotage or terrorism, or any escalation or worsening of any such acts of war, sabotage or terrorism; (5) earthquakes, hurricanes, floods or other natural disasters; (6) any Effect consisting of or to the extent resulting from any action taken by the Company or its Subsidiaries that is required by this Agreement; or (7) any change in the composition of the Company’s Board of Directors pursuant to Section 1.3(a); provided, however, that with respect to clauses (1), (4) and (5), such Effect does not have a materially disproportionate and adverse effect on the Company and its Subsidiaries, taken as a whole, relative to most other similarly situated(b) any change in conditions (including any change in general legal, comparable companies and their respective subsidiariesregulatory, taken as a wholepolitical, economic or business conditions or any change in GAAP) in or otherwise generally affecting the industry in which the Company and its Subsidiaries operate; providedconduct business, further, that, any failure to meet internal or published projections, forecasts or revenue or earning predictions for any period shall notwhich, in each case, do not disproportionately affect the Company and its Subsidiaries, taken as a whole, (c) the impact of itselfthe announcement of the execution of this Agreement or the consummation of the transactions contemplated by this Agreement on any relationships, constitute contractual or otherwise, between the Company and its landlords, suppliers, vendors, employees or Affiliate Professionals, or (d) any act of terrorism or war (whether or not threatened, pending or declared), which does not disproportionately affect the Company and its Subsidiaries, taken as a whole. The Company Material Adverse Effect.has made available to Parent complete and correct copies of its Organizational Documents, each as amended, and the Organizational Documents of each Subsidiary of the Company, each as amended. Such Organizational Documents of the Company and each of its Subsidiaries are in full force and effect. None of the Company or any of its Subsidiaries is in violation of any provision of its

Organization, Standing and Corporate Power. (a) Each of the Company and its Subsidiaries is a corporation or other organization duly incorporated or organized, validly existing and in good standing (or equivalent statusto the extent such status is recognized in such jurisdictions) under the applicable Law Laws of the state jurisdiction in which it is incorporated or jurisdiction of its incorporation or organization. Each of organized, as the Company case may be, and its Subsidiaries has all requisite power and authority necessary to own, own or lease and operate all of its properties and assets and to carry on its business as it is now currently being conducted and as currently proposed to be conducted. Each of the Company and its Subsidiaries is duly licensed or qualified to do business and is in good standing (or equivalent status) as a foreign corporation or other entity in each jurisdiction in which the nature of the business or activities conducted by it or the character or location of the properties and assets owned, owned or leased or operated by it requires makes such license licensing or qualificationqualification necessary, except where the failure to be so licensed, qualified or in good standing (standing, individually or equivalent status) in the aggregate, has not had and would not reasonably be expected to have, individually or in have a Material Adverse Effect (as defined below) on the aggregate, a Company (“Company Material Adverse Effect”). For purposes of this Agreement, “Company Material Adverse Effect” shall mean mean, with respect to any party, any change, effect, event, developmentoccurrence, circumstance state of facts or occurrence (each, an “Effect”) development that, individually or when taken together with all other Effectsin the aggregate, (x) has had or would reasonably be likely to have a material materially adverse effect on (y) the business, properties, assets, liabilities (contingent or otherwise), prospects, results of operations, operations or condition (financial or otherwise), business or assets ) of the Company such party and its Subsidiaries, Subsidiaries taken as a whole, other than any effect, change, event, occurrence or state of facts arising from or relating to (yi) changes in general economic or political conditions or financial credit or securities markets in general in any country or region in which any of the Company or its Subsidiaries conducts a material adverse portion of their business, except to the extent such changes affect the Company and its Subsidiaries in a disproportionate manner as compared to other companies operating in any such country or region in industries in which the Company or its Subsidiaries operate or do business, (ii) any event, circumstance, change or effect on that affects the Company’s ability industries in which the Company or its Subsidiaries operate, except to perform the extent such event, circumstance, change or effects affect the Company and its obligationsSubsidiaries in a disproportionate manner as compared to other participants in the industry, (iii) any change in accounting requirements or principles (including GAAP) or any change in applicable Laws, rules or regulations or the interpretation thereof, (iv) any “act of God” including natural disasters and earthquakes, acts of war, sabotage, armed hostilities, terrorism or military actions, or consummate escalation or material worsening thereof, that cause any damage or destruction to, or render physically unusable, any facility or property of the TransactionsCompany or any of its Subsidiaries or otherwise disrupt the business or operations of the Company or any of its material Subsidiaries, (v) the announcement of this Agreement and the Transactions solely as a result of disclosing Parent’s identity as the acquirer, (vi) any decline in accordance with the terms market price or decrease or increase in the trading volume of Company Ordinary Shares after the date of this Agreement, provided, however, that in no event shall any of the following, either alone or in combination, be deemed to constitute, a Company Material Adverse Effect: and (1) changes in conditions in the United States or global economy or capital or financial markets generally, including changes in interest or exchange rates; (2vii) any Effect caused by the announcement, pendency litigation arising from allegations of a breach of fiduciary duty or performance other violation of applicable Laws relating to this Agreement, the consummation of the Transactions Merger or the identity of Parent; (3) any change in other Transactions, or the trading prices or trading volume of the Company Common Stock (provided approval thereof, provided, that the exception exceptions in this clause clauses (3vi) and (vii) shall not prevent or otherwise affect a determination that the underlying cause of any Effect underlying such change has resulted in, decline or contributed to, failure is a Company Material Adverse Effect; (4) acts of war, sabotage or terrorism, or any escalation or worsening of any (z) such acts of war, sabotage or terrorism; (5) earthquakes, hurricanes, floods or other natural disasters; (6) any Effect consisting of or to the extent resulting from any action taken by the Company or its Subsidiaries that is required by this Agreement; or (7) any change in the composition of the Companyparty’s Board of Directors pursuant to Section 1.3(a); provided, however, that with respect to clauses (1), (4) and (5), such Effect does not have a materially disproportionate and adverse effect on the Company and its Subsidiaries, taken as a whole, relative to most other similarly situated, comparable companies and their respective subsidiaries, taken as a wholeability to, in a timely manner, perform its obligations under this Agreement or consummate the industry in which the Company and its Subsidiaries operate; provided, further, that, any failure to meet internal or published projections, forecasts or revenue or earning predictions for any period shall not, in and of itself, constitute a Company Material Adverse EffectTransactions.

Organization, Standing and Corporate Power. (a) Each of the The Company and its Subsidiaries is a corporation duly incorporated or organized, validly existing and in good standing (or equivalent status) under the applicable Law Laws of the state or jurisdiction State of its incorporation or organization. Each of the Company Delaware, and its Subsidiaries has all requisite corporate power and authority necessary to own, own or lease and operate all of its properties and assets and to carry on its business as it is now being conducted and conducted. The Company is duly licensed or qualified to do business and is in good standing (or equivalent status) as a foreign corporation or other entity in each jurisdiction in which the nature of the business or activities conducted by it or the character or location of the properties and assets owned, owned or leased or operated by it requires makes such license licensing or qualificationqualification necessary, except where the failure to be so licensed, qualified or in good standing (or equivalent status) has not had and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse EffectEffect (as defined below) on the Company. For purposes of this Agreement, “Company Material Adverse Effect” shall mean means any effect, change, event, development, circumstance event or occurrence (eachwhether or not constituting any breach of a representation, an “Effect”warranty, covenant or agreement set forth in this Agreement) that, individually or when taken together in the aggregate with all other Effectseffects, changes, events or occurrences (xi) has a material adverse effect on the business, results of operations, assets or financial condition (financial or otherwise), business or assets of the Company and its Subsidiaries, Subsidiaries taken as a whole, or (yii) a material adverse effect on would or would reasonably be expected to prevent or materially impair or delay the Company’s ability to perform its obligations, or consummate consummation of the Transactions, in accordance with the terms of this Agreement, ; provided, however, that in no event shall any none of the following, either alone and to the extent arising out of or resulting from the following, no other effect, change, event or occurrence, shall constitute or be taken into account , individually or in combinationthe aggregate, be deemed to constitute, in determining whether a Company Material Adverse EffectEffect has occurred or may occur: any effect, change, event or occurrence (A) generally affecting (1) changes the industry in conditions which the Company and its Subsidiaries operate or (2) the economy, credit or financial or capital markets, in the United States or global economy or capital or financial markets generallyelsewhere in the world, including changes in interest or exchange rates; , or (B) to the extent arising out of, resulting from or attributable to (1) changes in Law or in generally accepted accounting principles or in accounting standards after the date of this Agreement or prospective changes in Law or in generally accepted accounting principles or in accounting standards, or any changes or prospective changes in the interpretation or enforcement of any of the foregoing, or any changes or prospective changes in general legal, regulatory or political conditions, (2) any Effect caused by the announcementnegotiation, pendency execution or performance announcement of this Agreement, Agreement or the consummation of the Transactions (other than for purposes of any representation or warranty contained in Section 3.3(c) and Section 3.4), including the impact thereof on relationships, contractual or otherwise, with customers, suppliers, distributors, partners, employees or regulators, or any litigation arising from allegations of breach of fiduciary duty or violation of Law relating to this Agreement or the identity of Parent; transactions contemplated by this Agreement, (3) any change in the trading prices or trading volume of the Company Common Stock (provided that the exception in this clause (3) shall not prevent or otherwise affect a determination that any Effect underlying such change has resulted in, or contributed to, a Company Material Adverse Effect; (4) acts of warwar (whether or not declared), sabotage or terrorism, or any escalation or worsening of any such acts of warwar (whether or not declared), sabotage or terrorism; , (54) pandemics, earthquakes, hurricanes, floods tornados or other natural disasters; , (65) any Effect consisting of or to the extent resulting from any action taken by the Company or its Subsidiaries that is required described in, and permitted to be taken without consent under, clauses (i) through (xviii) of Section 5.1(a), that were taken at the Parent’s written request or upon its advance written consent pursuant to Section 5.1 or the failure by the Company or its Subsidiaries to take any action that is prohibited by this Agreement; Agreement to the extent Parent fails to give its consent thereto after a written request therefor pursuant to Section 5.1, (6) any change resulting or arising from the identity of, or any facts or circumstances relating to, Parent, Merger Sub or any of their respective Affiliates, (7) any change or prospective change in the composition of the Company’s Board credit ratings, (8) any decline in the market price, or change in trading volume, of Directors pursuant the capital stock of the Company or (9) any failure to Section 1.3(ameet any internal or public projections, forecasts, guidance, estimates, milestones, budgets or internal or published financial or operating predictions of revenue, earnings, cash flow or cash position (it being understood that the exceptions in clauses (7), (8) and (9) shall not prevent or otherwise affect a determination that the underlying cause of any such decline or failure referred to therein (if not otherwise falling within any of the exceptions provided by clause (A) and clauses (B)(1) through (6) hereof) is a Material Adverse Effect); provided, further, however, that with respect any effect, change, event or occurrence referred to in clauses (1A) or (B)(1), (3) or (4) and (5)may be taken into account in determining whether or not there has been a Material Adverse Effect to the extent such effect, such Effect does not have change, event or occurrence has a materially disproportionate and adverse effect affect on the Company and its Subsidiaries, taken as a whole, relative as compared to most other similarly situated, comparable companies and their respective subsidiaries, taken as a whole, participants in the industry in which the Company and its Subsidiaries operate; provided, further, that, any failure to meet internal operate (in which case the incremental materially disproportionate impact or published projections, forecasts impacts may be taken into account in determining whether or revenue not there has been or earning predictions for any period shall not, in and of itself, constitute may be a Company Material Adverse Effect).

Organization, Standing and Corporate Power. (a) Each of the The Company and its Subsidiaries is a corporation duly incorporated or organized, validly existing and in good standing (or equivalent status) under the applicable Law Laws of the state or jurisdiction State of its incorporation or organization. Each of the Company Delaware and its Subsidiaries has all requisite corporate power and authority necessary to own, own or lease and operate all of its properties and assets and to carry on its business as it is now being conducted and conducted. Except as set forth on Section 3.1(a) of the Company Disclosure Schedule, the Company is duly licensed or qualified to do business and is in good standing (or equivalent status) as a foreign corporation or other entity in each jurisdiction in which the nature of the business or activities conducted by it or the character or location of the properties and assets owned, owned or leased or operated by it requires makes such license licensing or qualificationqualification necessary, except where the failure to be so licensed, qualified or in good standing (or equivalent status) has not had and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse EffectEffect on the Company. For purposes of this Agreement, “Company Material Adverse Effect” shall mean mean, with respect to the Company, any condition, change, event, development, circumstance event or occurrence (eachwhich has, an “Effect”) thator would reasonably be expected to have, individually or when taken together with all other Effects, (x) has a material adverse effect on the business, results of operations, operations or financial condition (financial or otherwise), business or assets of the Company such party and its Subsidiaries, Subsidiaries taken as a whole, other than conditions, changes, events, occurrences or effects: (i) generally affecting (A) the industries in which the Company and its Subsidiaries operate, or (yB) a material adverse effect on the Company’s ability to perform its obligationseconomy or the financial, debt, credit or consummate the Transactionssecurities markets, in accordance with the terms of this Agreement, provided, however, that in no event shall any of the following, either alone or in combination, be deemed to constitute, a Company Material Adverse Effect: (1) changes in conditions in the United States or global elsewhere in the world, including effects on such segments, economy or capital markets resulting from or financial markets generallyarising out of (1) any regulatory or political conditions or developments, including changes in interest or exchange rates; (2) any Effect caused by the announcementoutbreak, pendency escalation or performance threat of this Agreementhostilities, the consummation of the Transactions declared or the identity of Parent; (3) any change in the trading prices or trading volume of the Company Common Stock (provided that the exception in this clause (3) shall not prevent or otherwise affect a determination that any Effect underlying such change has resulted in, or contributed to, a Company Material Adverse Effect; (4) undeclared acts of war, sabotage or terrorism, or weather or climatic conditions or other force majeure events; or (ii) arising out of, resulting from or attributable to (A) changes in Law or in generally accepted accounting principles or in accounting standards, or changes in general legal, regulatory or political conditions; or (B) the negotiation, execution, announcement or performance of this Agreement or, except with respect to Sections 3.3(c) or 3.4, the consummation of the Transactions, including the impact thereof on relationships, contractual or otherwise, with customers, suppliers, distributors, partners or employees, or any escalation litigation arising from allegations of breach of fiduciary duty or worsening violation of any such acts of war, sabotage Law relating to this Agreement or terrorismthe Transactions; (5C) earthquakes, hurricanes, floods or other natural disasters; (6) any Effect consisting of or to the extent resulting from any action taken by the Company or its Subsidiaries that is as required by this Agreement (other than Section 5.1(a))or with Parent’s prior written consent, or any failure by the Company to take any action in order to comply with the restrictions in Article V of this Agreement; or (7D) any decline in the market price, or change in the composition trading volume, of the Company’s Board capital stock of Directors pursuant such party or any failure of the Company to Section 1.3(ameet internal projections or forecasts, or projections or forecasts of any other Person, of revenues, earnings or cash flow for any period ending on or after the date of this Agreement, in and of itself (for the avoidance of doubt, this clause (D) shall not preclude either party from asserting that the underlying cause of any such change in stock price or trading volume or failure is a Material Adverse Effect); provided, however, that with respect to in the case of clauses (1i)(A), (4i)(B) and (5ii)(A), such Effect does changes, events, occurrences or effects do not have a materially disproportionate and adverse effect on the Company and its Subsidiaries, taken as a whole, relative to most other similarly situated, comparable companies and their respective subsidiaries, taken as a whole, in the industry in which affect the Company and its Subsidiaries operate; provided, further, that, any failure in a materially disproportionate manner as compared to meet internal or published projections, forecasts or revenue or earning predictions for any period shall not, in and of itself, constitute a Company Material Adverse Effectother participants such industry.

Organization, Standing and Corporate Power. (a) Each of the Company and its Subsidiaries is a corporation, limited liability company or limited partnership duly incorporated or organized, validly existing and in good standing (or equivalent status) standing, as applicable, under the applicable Law Laws of the state or jurisdiction of its incorporation or organization. Each of the Company in which it is incorporated and its Subsidiaries has all requisite corporate power and authority necessary to own, own or lease and operate all of its properties and assets to the extent owned, leased and operated and to carry on its business as it is now being conducted conducted. Each of the Company and its Subsidiaries is duly licensed or qualified to do business and is in good standing (or equivalent status) as a foreign corporation or other entity in each jurisdiction in which the nature of the business or activities conducted by it or the character or location of the properties and assets owned, owned or leased or operated by it requires makes such license licensing or qualificationqualification necessary, except where the failure to be so licensed, qualified or in good standing (standing, individually or equivalent status) in the aggregate, has not had and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse EffectEffect (as defined below). For purposes of this Agreement, “Company Material Adverse Effect” shall mean any material adverse effect on, or change, event, development, circumstance occurrence, condition or occurrence state of (eachi) the business, an “Effect”) thatoperations, individually assets, Liabilities, financial condition or when taken together with all other Effects, (x) has a material adverse effect on the results of operations, condition (financial or otherwise), business or assets operations of the Company and its Subsidiaries, taken Subsidiaries considered as a whole, single enterprise or (yii) a material adverse effect on the Company’s ability to to, in a timely manner, perform its obligations, obligations under this Agreement or consummate the Transactions, in accordance with Transactions (including the terms of this Agreement, provided, however, that in no event shall any of the following, either alone or in combination, be deemed to constitute, a Company Material Adverse Effect: (1) changes in conditions in the United States or global economy or capital or financial markets generally, including changes in interest or exchange rates; (2) any Effect caused by the announcement, pendency or performance of this Agreement, the consummation of the Transactions or the identity of Parent; (3) any change in the trading prices or trading volume of the Company Common Stock (provided that the exception in this clause (3) shall not prevent or otherwise affect a determination that any Effect underlying such change has resulted in, or contributed to, a Company Material Adverse Effect; (4) acts of war, sabotage or terrorism, or any escalation or worsening of any such acts of war, sabotage or terrorism; (5) earthquakes, hurricanes, floods or other natural disasters; (6) any Effect consisting of or to the extent resulting from any action taken by the Company or its Subsidiaries that is required by this Agreement; or (7) any change in the composition of the Company’s Board of Directors pursuant to Section 1.3(aMerger); provided, however, that with respect to clauses solely for purposes of clause (1), (4i) and (5), such Effect does not have a materially disproportionate and adverse effect on of the definition of “Company and its Subsidiaries, taken as a whole, relative to most other similarly situated, comparable companies and their respective subsidiaries, taken as a whole, in Material Adverse Effect,” none of the industry in which the Company and its Subsidiaries operate; provided, further, that, any failure to meet internal or published projections, forecasts or revenue or earning predictions for any period shall notfollowing, in and of itself, shall constitute or be considered in determining whether a Company Material Adverse EffectEffect has occurred: any effect, change, event, development, occurrence, condition or state of facts that (A) arises out of general political, economic or market conditions or general changes or developments in the national electric transmission and distribution utility industry (the “Industry”) that do not materially and disproportionately adversely affect the business, operations, assets, Liabilities, financial condition or results of operations of the Company and its Subsidiaries considered as a single enterprise compared to businesses or entities operating in the Industry, (B) results from or is caused by acts of terrorism or war (whether or not declared) or natural disasters occurring after the date hereof that do not materially and disproportionately adversely affect the business, operations, assets, Liabilities, financial condition Table of Contents or results of operations of the Company and its Subsidiaries considered as a single enterprise compared to businesses or entities operating in the Industry, (C) arises out of, results from or relates to the Transactions or the announcement thereof, or any negative impact on relationships with employees of the Company or any of its Subsidiaries or disruption in supplier, distributor, landlord, partner or similar relationships as a result of the announcement of the Transactions, (D) results from changes in Law or any applicable accounting regulations or principles or the interpretations thereof that do not materially and disproportionately adversely affect the business, operations, assets, Liabilities, financial condition or results of operations of the Company and its Subsidiaries considered as a single enterprise compared to businesses or entities operating in the Industry, (E) results from changes in the price or trading volume of the Company’s stock (provided that any event, condition, change, occurrence or development of a state of circumstances that may have caused or contributed to such change in market price or trading volume shall not be excluded under this proviso), or (F) results from any failure by the Company to meet public or internal revenue, earnings or other projections, in and of itself (provided that any event, condition, change, occurrence or development of a state of circumstances that may have caused or contributed to such failure to meet published revenue, earnings or other projections shall not be excluded under this proviso).

Organization, Standing and Corporate Power. (a) Each of the The Company and each of its Subsidiaries is a corporation or other entity duly incorporated or organized, validly existing and and, where applicable, in good standing (or equivalent status) under the applicable Law Laws of the state jurisdiction in which it is incorporated or jurisdiction of its incorporation or organization. Each of the Company organized and its Subsidiaries has all requisite corporate power and authority necessary to own, own or lease and operate all of its properties and assets and to carry on its business as it is now being conducted and as heretofore been conducted. The Company and each of its Subsidiaries is duly licensed or qualified to do business and and, where applicable, is in good standing (or equivalent status) as a foreign corporation or other entity in each jurisdiction in which the nature of the business or activities conducted by it or the character or location of the properties and assets owned, owned or leased or operated by it requires makes such license licensing or qualificationqualification necessary, except where the failure to be so licensed, qualified or in good standing (or equivalent status) has not had and would not reasonably be expected to havestanding, individually or in the aggregate, does not constitute a Company Material Adverse Effect. For purposes of this Agreement, “the term "Company Material Adverse Effect” " shall mean any change, event, developmentoccurrence or circumstance which, circumstance either alone or occurrence (eachin combination with other changes, an “Effect”) thatevents, individually occurrences or when taken together with all other Effectscircumstances, (xi) has or is reasonably likely to have a material adverse effect on the business, results of operations, condition (financial or otherwise), business assets (tangible or assets intangible), liabilities (including contingent liabilities) or operations of the Company and its Subsidiaries, Subsidiaries taken as a whole, whole or (yii) a material adverse effect on could reasonably be expected to prevent or delay beyond the Outside Date (as defined in Section 7.1) the Company’s ability to perform its obligations, or consummate 's consummation of the Transactions, in accordance with the terms of this Agreement, ; provided, however, that in no event shall any none of the following, following shall be deemed either alone or in combination, be deemed combination to constitute, and none of the following shall be taken into account in determining whether there has been or will be, a Company Material Adverse Effect: (1) changes in conditions in the United States or global economy or capital or financial markets generally, including changes in interest or exchange rates; (2v) any Effect caused by change, event, occurrence or circumstance relating to the announcement, pendency or performance of this Agreement, the consummation of the Transactions or the identity of Parent; (3) any change in the trading prices or trading volume of the Company Common Stock (provided that the exception in this clause (3) shall not prevent or otherwise affect a determination that any Effect underlying such change has resulted in, or contributed to, a Company Material Adverse Effect; (4) acts of war, sabotage or terrorism, U.S. or any escalation or worsening of any such acts of war, sabotage or terrorism; (5) earthquakes, hurricanes, floods or other natural disasters; (6) any Effect consisting of or foreign economy in general to the extent resulting from any action taken by the Company that such change, event, occurrence or its Subsidiaries that is required by this Agreement; or (7) any change in the composition of the Company’s Board of Directors pursuant to Section 1.3(a); provided, however, that with respect to clauses (1), (4) and (5), such Effect circumstance does not have a materially disproportionate and adverse effect on the Company and its Subsidiaries, Subsidiaries taken as a whole, relative whole as compared to most other similarly situated, comparable companies and their respective subsidiaries, taken as a whole, in the industry industries in which the Company and its Subsidiaries operateconduct their business; provided(w) any change, furtherevent, thatoccurrence or circumstance relating to the industries in which the Company operates to the extent that such change, event, occurrence or circumstance does not have a materially disproportionate effect on the Company and its Subsidiaries taken as a whole as compared to other companies in the industries in which the Company and its Subsidiaries conduct their business; (x) any change, event, occurrence or circumstance relating to acts of terrorism, war, national or international calamity or any other similar event to the extent that such change, event, occurrence or circumstance does not have a materially disproportionate effect on the Company and its Subsidiaries taken as a whole as compared to other companies in the industries in which the Company and its Subsidiaries conduct their business; (y) any change, event, occurrence or circumstance that arises out of or results from any loss of or delay in placing customer orders that arises from or by virtue of the announcement or pendency of this Agreement or any of the Transactions; or (z) the failure of the Company to meet internal or published projectionsexternal analysts' expectations (it being understood, forecasts or revenue or earning predictions for any period shall nothowever, in and of itself, constitute a Company Material Adverse Effectthat the underlying circumstances giving rise to such failure may be taken into account unless otherwise excluded pursuant to this paragraph).

Organization, Standing and Corporate Power. (a) Each of the Company and its Subsidiaries is duly incorporated or organized, validly existing and in good standing (or equivalent status) under the applicable Law Laws of the state or jurisdiction of its incorporation or organization. Each of the Company in which it is incorporated and its Subsidiaries has all requisite corporate power and authority necessary to own, own or lease and operate all of its properties and assets and to carry on its business as it is now being conducted conducted. Each of the Company and its Subsidiaries is duly licensed or qualified to do business and is in good standing (or equivalent status) as a foreign corporation or other entity in each jurisdiction in which the nature of the business or activities conducted by it or the character or location of the properties and assets owned, owned or leased or operated by it requires makes such license licensing or qualificationqualification necessary, except where the failure to be so licensed, qualified or in good standing (or equivalent status) has not had and would not reasonably be expected to havestanding, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect. For purposes of this Agreement, a “Company Material Adverse Effect” shall mean any event, circumstance, change, eventoccurrence or effect that (i) is materially adverse to, development, circumstance or occurrence (each, an “Effect”) that, individually or when taken together with all other Effects, (x) has a material adverse effect on on, the business, properties, financial condition or results of operations, condition (financial or otherwise), business or assets operations of the Company and its Subsidiaries, Subsidiaries taken as a whole, ; or (yii) a material adverse effect on prevents or materially adversely affects the Company’s ability to perform its obligations, obligations under this Agreement or to consummate the Transactions, in accordance excluding any such event, circumstance, change, occurrence or effect arising out of, resulting from or attributable to: (A) acts of war or major armed hostilities, sabotage, or terrorism or any escalation or worsening of any acts of war, major armed hostilities, sabotage or terrorism; (B) compliance with the terms of, or the taking of any action required by, this Agreement, provided, however, that in no event shall any of the following, either alone or in combination, be deemed to constitute, a Company Material Adverse Effect: ; (1C) changes in conditions Laws (other than changes that have a disproportionate adverse impact on the Company and its Subsidiaries taken as a whole compared to other businesses competing in the United States industries in which the Company does business) or global economy or capital or financial markets generally, including changes in interest or exchange ratesGAAP; (2) any Effect caused by the announcement, pendency or performance of this Agreement, the consummation of the Transactions or the identity of Parent; (3D) any change in the trading prices price or trading volume of the Company Common Stock in and of itself (provided it being understood that the exception in this clause (3) shall not prevent or otherwise affect a determination that any Effect circumstances underlying such change has resulted inmay be deemed to constitute, or contributed tomay be taken into account in determining whether there has been, a Company Material Adverse Effect); (4) acts of war, sabotage or terrorism, or any escalation or worsening of any such acts of war, sabotage or terrorism; (5) earthquakes, hurricanes, floods or other natural disasters; (6) any Effect consisting of or to the extent resulting from any action taken by the Company or its Subsidiaries that is required by this Agreement; or (7E) any change in the composition any analyst rating of the Company’s Board Company in and of Directors itself (it being understood that the circumstances underlying such change may be deemed to constitute, or may be taken into account in determining whether there has been, a Company Material Adverse Effect); (F) the announcement of the Transactions or the taking of any action pursuant to Section 1.3(a); providedthis Agreement or otherwise with the written consent of Parent, however, that with respect to clauses (1), (4) and (5), such Effect does not have a materially disproportionate and adverse effect including the impact thereof on the relationships of the Company and its Subsidiarieswith customers, taken as a wholesuppliers, relative to most distributors, consultants, employees or independent contractors or any other similarly situated, comparable companies and their respective subsidiaries, taken as a whole, in Person with whom the industry Company has any relationship; (G) changes generally affecting the industries in which the Company and its Subsidiaries operateoperate (other than changes that have a disproportionate adverse impact on the Company and its Subsidiaries taken as a whole compared to other businesses competing in the industries in which the Company does business); provided(H) any change generally affecting the economy, furtherfinancial or securities markets or political or economic conditions, thator regulatory conditions (other than changes in regulatory conditions that have a disproportionate adverse impact on the Company and its Subsidiaries taken as a whole compared to other businesses competing in the industries in which the Company does business) in any geographic region in which the Company conducts business (it being understood that the circumstances underlying such change may be deemed to constitute, or may be taken into account in determining whether there has been, a Company Material Adverse Effect) and (I) any failure to meet internal or published projections, forecasts or revenue or earning predictions for any period shall notfailure, in and of itself, constitute by the Company to meet any internal or published projections, forecasts, or predictions of revenue, earnings or other financial measure (it being understood that the circumstances underlying such failure may be deemed to constitute, or may be taken into account in determining whether there has been, a Company Material Adverse Effect).

Organization, Standing and Corporate Power. Each of the Company and its Subsidiaries (a) is a corporation or limited liability company, as the case may be, duly organized, validly existing and in good standing under the Laws of the jurisdiction in which it is incorporated or formed, as the case may be, and (b) has all requisite corporate or limited liability company, as the case may be, power and authority to carry on its business as now being conducted. Each of the Company and its Subsidiaries is duly incorporated qualified or organized, validly existing and in good standing (or equivalent status) under the applicable Law of the state or jurisdiction of its incorporation or organization. Each of the Company and its Subsidiaries has all requisite power and authority to own, lease and operate its properties and assets and to carry on its business as it is now being conducted and is duly licensed or qualified to do business and is in good standing (or equivalent status) as a foreign corporation or other entity in each jurisdiction in which the nature of the its business or activities conducted by it the ownership, leasing or the character operation of its properties or location of the properties and other assets ownedmakes such qualification or licensing necessary, leased or operated by it requires other than in such license or qualification, except jurisdictions where the failure to be so licensed, qualified or licensed individually or in good standing (or equivalent status) the aggregate has not had and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect. For purposes of this Agreement, “Company Material Adverse Effect” shall mean any changestate of facts, circumstance, event, change, development, circumstance effect or occurrence (eachany such item, an “Effect”) that(i) that is materially adverse to the business, individually or when taken together with all other Effects, (x) has a material adverse effect on the consolidated results of operations, assets, properties or financial condition (financial or otherwise), business or assets of the Company and its Subsidiaries, Subsidiaries taken as a whole, whole or (yii) a that impairs in any material adverse effect on respect the Company’s ability of either Selling Party or the Company to perform its obligationsobligations under this Agreement or prevents or materially impedes, interferes with, hinders or consummate delays the Transactions, in accordance with consummation of the terms of this Agreement, provided, however, that in no event shall Acquisition or any of the followingother transactions contemplated hereby, either alone except, in the case of clause (i) above, for any Effect to the extent such Effect results from or in combination, be deemed is attributable to constitute, a Company Material Adverse Effect: (1A) changes any change in conditions in the United States States, foreign or global economy or capital or financial markets generally, including changes any change in interest or exchange rates; , (2) any Effect caused by the announcement, pendency or performance of this Agreement, the consummation of the Transactions or the identity of Parent; (3B) any change in the trading prices conditions (including any change in general legal, regulatory, political, economic or trading volume of the Company Common Stock (provided that the exception business conditions or any change in this clause (3GAAP) shall not prevent or otherwise affect a determination that any Effect underlying such change has resulted in, or contributed tootherwise generally affecting, a the industry in which the Company Material Adverse Effect; and its Subsidiaries conduct business, (4C) acts the negotiation, execution, announcement or pendency of warthis Agreement and the transactions contemplated hereby, sabotage including any impact thereof on relationships, contractual or terrorismotherwise, with any customers, suppliers, distributors, partners or any escalation or worsening of any such acts of waremployees, sabotage or terrorism; (5) earthquakes, hurricanes, floods or other natural disasters; (6D) any Effect consisting act of terrorism or to the extent resulting from war (whether threatened, pending or declared), (E) any action taken by the Company or any of its Subsidiaries that is required by this Agreement; with the written consent of either of the Purchasing Parties or (7F) any change failure by the Company or any of its Subsidiaries to meet projections (it being understood that, without limiting the applicability of the provisions contained in clause (A) or (B) above, the cause or causes of any such failure may be deemed either alone or in combination with other events to constitute a Material Adverse Effect and may be taken into account in determining whether a Material Adverse Effect has occurred); except in the composition case of the Company’s Board of Directors pursuant to Section 1.3(a); provided, however, that with respect to clauses clause (1A), (4B) and or (5D), to the extent such Effect does not have has a materially disproportionate and adverse effect on the Company and its Subsidiaries, taken as a whole, relative when compared to most other similarly situated, comparable companies and their respective subsidiaries, taken as a whole, operating in the same industry in which the Company and its Subsidiaries operateconduct business; providedit being understood and agreed that for purposes of Section 2.04(b), further, that, any failure to meet internal or published projections, forecasts or revenue or earning predictions for any period shall not, in and the definition of itself, constitute a Company the term “Material Adverse Effect.” shall not include the exception set forth in the preceding clause (C). The Company has made

Organization, Standing and Corporate Power. Xxxxxx (a) Each of the Company and its Subsidiaries is a corporation duly incorporated or organized, validly existing and in good standing (or has equivalent status) status under the applicable Law laws of the state or jurisdiction of its incorporation or organization. Each of the Company Bermuda and its Subsidiaries has all requisite corporate power and authority to own, lease and operate its properties and assets and to carry on its business as it is now being conducted and as proposed to be conducted, and (b) is duly qualified or licensed or qualified to do business and is in good standing (or has equivalent status) as a foreign corporation or other entity status in each jurisdiction in which the character of the properties it owns, operates or leases or the nature of the its business or activities conducted by it or makes such qualification necessary, except, in the character or location case of the properties and assets ownedthis clause (b), leased or operated by it requires for such license or qualification, except where the failure failures to be so licensed, qualified or in good standing (or equivalent status) has that have not had had, and would are not reasonably be expected likely to have, individually or in the aggregate, a Company an Xxxxxx Material Adverse Effect. For purposes of this Agreement, the term “Company Xxxxxx Material Adverse Effect” shall mean means any change, event, developmenteffect, circumstance circumstance, occurrence, state of facts or occurrence (each, an “Effect”) development that, individually or when taken together in the aggregate with all such other Effectschanges, events, effects, circumstances, occurrences, states of facts and developments, is or is reasonably likely to be materially adverse to (xi) has a material adverse effect on the business, assets (including vessels), financial condition or results of operations, condition (financial or otherwise), business or assets operations of the Company Xxxxxx and its Subsidiaries, taken as a whole, or (yii) a material adverse effect on the Company’s ability of Xxxxxx to perform its obligations, or consummate the Transactions, in accordance with transactions contemplated by this Agreement on a reasonably prompt basis; provided that the terms of this Agreement, provided, however, that in no event following shall any of the following, either alone or in combination, not be deemed to constitute, a Company constitute an “Xxxxxx Material Adverse Effect”: any change, event, effect, circumstance, occurrence, state of facts or development to the extent caused by or resulting from (1A) changes changes, events, circumstances or developments in prevailing economic or market conditions in the United States or global economy or capital or financial markets generallyany other jurisdiction in which Xxxxxx and its Subsidiaries, including changes in interest or exchange rates; taken as a whole, have substantial business operations (2) any Effect caused by the announcement, pendency or performance of this Agreement, the consummation of the Transactions or the identity of Parent; (3) any change in the trading prices or trading volume of the Company Common Stock (provided that the exception in this clause (3) shall not prevent or otherwise affect a determination that any Effect underlying such change has resulted in, or contributed to, a Company Material Adverse Effect; (4) acts of war, sabotage or terrorism, or any escalation or worsening of any such acts of war, sabotage or terrorism; (5) earthquakes, hurricanes, floods or other natural disasters; (6) any Effect consisting of or except to the extent resulting from any action taken by the Company or its Subsidiaries that is required by this Agreement; or (7) any change in the composition of the Company’s Board of Directors pursuant to Section 1.3(a); provided, however, that with respect to clauses (1), (4) and (5), such Effect does not those changes have a materially disproportionate and adverse effect on the Company Xxxxxx and its Subsidiaries, taken as a whole, relative to most other similarly situated, comparable companies Galileo and their respective subsidiariesits Subsidiaries, taken as a whole, in which case the industry incremental disproportionate impact(s) may be deemed either alone or in combination to constitute, or be taken into account in determining whether there has been, or is reasonably likely to be, an Xxxxxx Material Adverse Effect), (B) changes, events, circumstances or developments occurring after the date hereof, affecting the industries in which Xxxxxx and Galileo operate generally (except to the extent those changes or events have a materially disproportionate effect on Xxxxxx and its Subsidiaries, taken as a whole, relative to Galileo and its Subsidiaries, taken as a whole, in which case the incremental disproportionate impact(s) may be deemed either alone or in combination to constitute, or be taken into account in determining whether there has been, or is reasonably likely to be, an Xxxxxx Material Adverse Effect), (C) changes announced or effective after the date hereof in GAAP applicable to Xxxxxx and its Subsidiaries (except to the extent those changes have a materially disproportionate effect on Xxxxxx and its Subsidiaries, taken as a whole, relative to Galileo and its Subsidiaries, taken as a whole, in which case the incremental disproportionate impact(s) may be deemed either alone or in combination to constitute, or be taken into account in determining whether there has been, or is reasonably likely to be, an Xxxxxx Material Adverse Effect), (D) changes announced or effective after the date hereof, in laws, rules or regulations of general applicability or interpretations thereof by any Governmental Entity (except to the extent those changes have a materially disproportionate effect on Xxxxxx and its Subsidiaries, taken as a whole, relative to Galileo and its Subsidiaries, taken as a whole, in which case the incremental disproportionate impact(s) may be deemed either alone or in combination to constitute, or be taken into account in determining whether there has been, or is reasonably likely to be, an Xxxxxx Material Adverse Effect), (E) the announcement and pendency of this Agreement and the transactions contemplated hereby, or (F) any outbreak of major hostilities in which the Company United States is involved or any act of terrorism within the United States or directed against its facilities or citizens wherever located; and its Subsidiaries operate; provided, further, thatthat in no event shall a change in the trading prices or volume of Xxxxxx’x capital stock, any failure to meet internal or published projections, forecasts or revenue or earning predictions for any period shall not, in and of by itself, constitute a Company be considered an “Xxxxxx Material Adverse Effect”.

Organization, Standing and Corporate Power. (a) Each of the The Company and its Subsidiaries is a corporation duly incorporated or organized, validly existing and in good standing (or equivalent status) under the applicable Law Laws of the state or jurisdiction State of its incorporation or organization. Each of the Company Delaware and its Subsidiaries has all requisite corporate power and authority necessary to own, own or lease and operate all of its properties and assets and to carry on its business as it is now being conducted and conducted. The Company is duly licensed or qualified to do business and is in good standing (or equivalent status) as a foreign corporation or other entity in each jurisdiction in which the nature of the business or activities conducted by it or the character or location of the properties and assets owned, owned or leased or operated by it requires makes such license licensing or qualificationqualification necessary, except where the failure to be so licensed, qualified or in good standing (or equivalent status) has not had and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse EffectEffect on the Company. For purposes of this Agreement, “Company Material Adverse Effect” shall mean mean, with respect to the Company, any development, change, event, developmentcondition, circumstance occurrence or occurrence (each, an “Effect”) thateffect which, individually or when taken together with all other Effectsdevelopments, changes, events, conditions, occurrences or effects that exist at the date of determination, (xi) prevents or materially delays, or would reasonably be expected to prevent or materially delay, consummation of the Offer or the Merger or (ii) has had or would reasonably be expected to have a material adverse effect on (A) the business, operations, assets, liabilities, results of operations, operations or condition (financial or otherwise), business or assets ) of the Company such party and its Subsidiaries, Subsidiaries taken as a whole, or (yB) a material adverse effect on the Company’s ability of the Company to perform its obligations, obligations under this Agreement or to consummate the Transactions, in accordance with the terms other than developments, changes, events, conditions, occurrences or effects directly arising out of this Agreement, provided, however, that in no event shall any of the following, either alone or in combination, be deemed to constitute, a Company Material Adverse Effect: resulting from (1) changes general conditions in conditions the industry in which the Company and each of its Subsidiaries primarily operate, provided that such developments, changes, events, conditions, occurrences or effects do not affect the Company and its Subsidiaries taken as a whole in a materially disproportionate manner as compared to other comparable participants in such industry; (2) general economic, financial, debt, credit or securities markets conditions, in the United States or global economy elsewhere in the world, provided that such developments, changes, events, conditions, occurrences or capital or financial markets generally, including effects do not affect the Company and its Subsidiaries taken as a whole in a materially disproportionate manner relative to other comparable companies operating in the industry in which the Company and each of its Subsidiaries primarily operate; (3) changes in interest Law or exchange ratesin generally accepted accounting principles or in accounting standards, or changes in general legal, regulatory or political conditions, provided that such developments, changes, events, conditions, occurrences or effects do not affect the Company and its Subsidiaries taken as a whole in a materially disproportionate manner relative to other comparable companies operating in the industry in which the Company and each of its Subsidiaries primarily operate; (24) any Effect caused by the announcement, pendency announcement or performance of this Agreement, Agreement or the consummation pendency of the Transactions Transactions, including the impact thereof on relationships, contractual or the identity of Parent; (3) any change in the trading prices otherwise, with customers, suppliers, distributors, partners or trading volume of the Company Common Stock (provided that the exception in this clause (3) shall not prevent or otherwise affect a determination that any Effect underlying such change has resulted in, or contributed to, a Company Material Adverse Effect; (4) acts of war, sabotage or terrorismemployees, or any escalation litigation arising from allegations of breach of fiduciary duty or worsening violation of any such acts of war, sabotage Law relating to this Agreement or terrorismthe Transactions; (5) earthquakes, hurricanes, floods or other natural disasters; (6) any Effect consisting of or to the extent resulting from any action taken by the Company or its Subsidiaries that is as required by this Agreement or with Parent’s consent, or any failure by the Company to take any action as a result of the restrictions in Article VI of this Agreement; or (76) any decline in the market price, or change in the composition trading volume, of the Company’s Board capital stock of Directors pursuant to Section 1.3(a); provided, however, that with respect to clauses (1), (4) and (5), such Effect does not have a materially disproportionate and adverse effect on party or any failure of the Company and its Subsidiaries, taken as a whole, relative to most other similarly situated, comparable companies and their respective subsidiaries, taken as a whole, in the industry in which the Company and its Subsidiaries operate; provided, further, that, any failure to meet internal projections or published projectionsforecasts, or projections or forecasts of any other Person, of revenues, earnings or revenue or earning predictions cash flow for any period shall notending on or after the date of this Agreement, in and of itself, constitute itself (for the avoidance of doubt this clause (6) shall not preclude either party from asserting that the underlying cause of any such change in stock price or trading volume or failure can be taken into account for purposes of determining whether a Company Material Adverse EffectEffect has occurred).

Organization, Standing and Corporate Power. (a) Each of the Company and its Subsidiaries is a corporation duly incorporated or organized, validly existing and in good standing (or equivalent status) under the applicable Law Laws of the state or jurisdiction of its incorporation or organization. Each of the Company in which it is incorporated and its Subsidiaries has all requisite corporate power and authority necessary to own, own or lease and operate all of its properties and assets and to carry on its business as it is now being conducted conducted. Each of the Company and its Subsidiaries is duly licensed or qualified to do business and is in good standing (or equivalent status) as a foreign corporation or other entity in each jurisdiction in which the nature of the business or activities conducted by it or the character or location of the properties and assets owned, owned or leased or operated by it requires makes such license licensing or qualificationqualification necessary, except where the failure to be so licensed, qualified or in good standing (standing, individually or equivalent status) in the aggregate, has not had and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse EffectEffect (as defined below). For purposes of this Agreement, “Company Material Adverse Effect” shall mean any change, event, development, circumstance occurrence or occurrence effect which has had or would reasonably be expected to (each, an “Effect”i) that, individually or when taken together with all other Effects, (x) has have a material adverse effect on the results of operations, condition (financial or otherwise), business business, assets or assets liabilities of such party and its Subsidiaries taken as a whole, other than (only for purposes of Section 3.6(b), 3.7 or 6.2(c)) changes, events, occurrences or effects (A) generally affecting (I) the industry of the Company and its Subsidiaries, taken as a wholeprovided that such changes, events, occurrences or effects do not disproportionately affect such party and its Subsidiaries, or (yII) a material adverse effect on the Company’s ability to perform its obligationseconomy, or consummate the Transactionsfinancial or capital markets, in accordance with the terms of this Agreement, provided, however, that in no event shall any of the following, either alone or in combination, be deemed to constitute, a Company Material Adverse Effect: (1) changes in conditions in the United States or global economy or capital or financial markets generallyelsewhere in the world, including changes in interest or exchange rates; (2) any Effect caused by the announcement, pendency or performance of this Agreement, the consummation of the Transactions or the identity of Parent; (3) any change in the trading prices or trading volume of the Company Common Stock (provided that the exception in this clause (3) shall not prevent or otherwise affect a determination that any Effect underlying such change has resulted in, or contributed to(B) arising out of, a Company Material Adverse Effect; resulting from or attributable to (4I) changes in Law or in generally accepted accounting principles or in accounting standards, or changes in general legal, regulatory or political conditions, (II) acts of war, sabotage or terrorism, or any escalation or worsening of any such acts of war, sabotage or terrorism; terrorism threatened or underway as of the date of this Agreement, (5III) earthquakes, hurricanes, floods tornados or other natural disasters; , (6IV) the negotiation, execution, announcement or performance of this Agreement or the consummation of the Transactions, including the impact thereof on relationships, contractual or otherwise, with suppliers, distributors, partners or employees, but expressly not including the impact thereof on relationships, contractual or otherwise, with customers, or any Effect consisting litigation arising from allegations of breach of fiduciary duty or violation of Law relating to this Agreement or the extent resulting from Transactions, (V) any action taken by the Company or its Subsidiaries that is required as contemplated or permitted by this Agreement; Agreement or with Parent’s consent, or any failure by the Company to take any action as a result of the restrictions in Article V, or (7VI) any decline in the market price, or change in the composition trading volume, of the Company’s Board capital stock of Directors pursuant the Company or any failure to Section 1.3(ameet publicly announced revenue or earnings projections (with respect to subclause (VI) of this clause (B), it being understood and agreed that the facts and circumstances giving rise to such change, event, occurrence or effect that are not otherwise excluded from the definition of Company Material Adverse Effect may be taken into account in determining whether there has been a Company Material Adverse Effect); provided, howeverthat such changes, that with respect events, occurrences or effects referred to clauses in subclauses (1), I) - (4III) and of this clause (5), such Effect does B) do not have a materially disproportionate and adverse effect on disproportionately affect the Company and its Subsidiaries, taken as a whole, relative to most other similarly situated, comparable companies and their respective subsidiaries, taken as a whole, or (only for purposes of Section 3.6(b) or 6.2(c)) (ii) impair in any material respect the industry in which ability of the Company and to perform its Subsidiaries operate; provided, further, that, any failure to meet internal obligations hereunder or published projections, forecasts prevent or revenue or earning predictions for any period shall not, in and materially delay consummation of itself, constitute a Company Material Adverse Effectthe Transactions.

Organization, Standing and Corporate Power. Each of the Company and its Subsidiaries (a) is a corporation or limited liability company, as the case may be, duly organized, validly existing and in good standing under the Laws of the jurisdiction in which it is incorporated or formed, as the case may be, and (b) has all requisite corporate or limited liability company, as the case may be, power and authority to carry on its business as now being conducted. Each of the Company and its Subsidiaries is duly incorporated qualified or organized, validly existing and in good standing (or equivalent status) under the applicable Law of the state or jurisdiction of its incorporation or organization. Each of the Company and its Subsidiaries has all requisite power and authority to own, lease and operate its properties and assets and to carry on its business as it is now being conducted and is duly licensed or qualified to do business and is in good standing (or equivalent status) as a foreign corporation or other entity in each jurisdiction in which the nature of the its business or activities conducted by it the ownership, leasing or the character operation of its properties or location of the properties and other assets ownedmakes such qualification or licensing necessary, leased or operated by it requires other than in such license or qualification, except jurisdictions where the failure to be so licensed, qualified or licensed individually or in good standing (or equivalent status) the aggregate has not had and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect. For purposes of this Agreement, “Company Material Adverse Effect” shall mean any changestate of facts, circumstance, event, change, development, circumstance effect or occurrence (eachany such item, an “Effect”) that(i) that is materially adverse to the business, individually or when taken together with all other Effects, (x) has a material adverse effect on the consolidated results of operations, assets, properties or financial condition (financial or otherwise), business or assets of the Company and its Subsidiaries, Subsidiaries taken as a whole, whole or (yii) a that impairs in any material adverse effect on respect the Company’s ability of either Selling Party or the Company to perform its obligationsobligations under this Agreement or prevents or materially impedes, interferes with, hinders or consummate delays the Transactions, in accordance with consummation of the terms of this Agreement, provided, however, that in no event shall Acquisition or any of the followingother transactions contemplated hereby, either alone except, in the case of clause (i) above, for any Effect to the extent such Effect results from or in combination, be deemed is attributable to constitute, a Company Material Adverse Effect: (1A) changes any change in conditions in the United States States, foreign or global economy or capital or financial markets generally, including changes any change in interest or exchange rates; , (2) any Effect caused by the announcement, pendency or performance of this Agreement, the consummation of the Transactions or the identity of Parent; (3B) any change in the trading prices conditions (including any change in general legal, regulatory, political, economic or trading volume of the Company Common Stock (provided that the exception business conditions or any change in this clause (3GAAP) shall not prevent or otherwise affect a determination that any Effect underlying such change has resulted in, or contributed tootherwise generally affecting, a the industry in which the Company Material Adverse Effect; and its Subsidiaries conduct business, (4C) acts the negotiation, execution, announcement or pendency of warthis Agreement and the transactions contemplated hereby, sabotage including any impact thereof on relationships, contractual or terrorismotherwise, with any customers, suppliers, distributors, partners or any escalation or worsening of any such acts of waremployees, sabotage or terrorism; (5) earthquakes, hurricanes, floods or other natural disasters; (6D) any Effect consisting act of terrorism or to the extent resulting from war (whether threatened, pending or declared), (E) any action taken by the Company or any of its Subsidiaries that is required by this Agreement; with the written consent of either of the Purchasing Parties or (7F) any change failure by the Company or any of its Subsidiaries to meet projections (it being understood that, without limiting the applicability of the provisions contained in clause (A) or (B) above, the cause or causes of any such failure may be deemed either alone or in combination with other events to constitute a Material Adverse Effect and may be taken into account in determining whether a Material Adverse Effect has occurred); except in the composition case of the Company’s Board of Directors pursuant to Section 1.3(a); provided, however, that with respect to clauses clause (1A), (4B) and or (5D), to the extent such Effect does not have has a materially disproportionate and adverse effect on the Company and its Subsidiaries, taken as a whole, relative when compared to most other similarly situated, comparable companies and their respective subsidiaries, taken as a whole, operating in the same industry in which the Company and its Subsidiaries operateconduct business; providedit being understood and agreed that for purposes of Section 2.04(b), further, that, any failure to meet internal or published projections, forecasts or revenue or earning predictions for any period shall not, in and the definition of itself, constitute a Company the term “Material Adverse Effect” shall not include the exception set forth in the preceding clause (C). The Company has made available to the Purchasing Parties true and complete copies of the certificate of incorporation of the Company as in effect on the date of this Agreement (the “Company Certificate”) and the By-laws of the Company as in effect on the date of this Agreement (the “Company By-laws”), and each equivalent organizational document for each of the Company’s Subsidiaries (the Company Certificate and the Company By-laws, together with such equivalent organizational documents of the Company’s Subsidiaries, the “Organizational Documents”).

Organization, Standing and Corporate Power. (a) Each of the Company and its Subsidiaries IMC is an entity duly incorporated or organized, validly existing and in good standing (or equivalent status) under the applicable Law Laws of the state or jurisdiction of its incorporation or organization. Each of the Company in which it is formed and its Subsidiaries has all requisite corporate power and authority to own, lease own and operate its properties and assets and to carry on its business as it is now being conducted and conducted. IMC is duly qualified or licensed or qualified to do business as a foreign corporation and is in good standing (or equivalent status) as a foreign corporation or other entity in each jurisdiction in which the nature conduct of the its business or activities conducted by it the ownership or the character operation of its properties makes such qualification or location of the properties and assets ownedlicensing necessary, leased or operated by it requires other than in such license or qualification, except jurisdictions where the failure to be so licensed, qualified or licensed individually or in good standing (or equivalent status) the aggregate has not had and would not reasonably be expected to have, individually or in the aggregate, a Company have an IMC Material Adverse Effect. IMC has made available to Cargill complete and correct copies of its Certificate of Incorporation, as amended (the “IMC Certificate”), and Bylaws, as amended (the “IMC Bylaws”), and the certificate of incorporation and bylaws (or comparable organizational documents) of each of its Subsidiaries listed on Exhibit 21 to the IMC 10-K, in each case as amended to the date of this Agreement. (b) For purposes of this Agreement, “Company IMC Material Adverse Effect” shall mean any change, effect, event, developmentoccurrence or state of facts that is materially adverse to the business, circumstance properties, financial condition or occurrence (each, an “Effect”) that, individually or when taken together with all other Effects, (x) has a material adverse effect on the results of operations, condition (financial or otherwise), business or assets operations of the Company IMC and its Subsidiaries, taken as a whole, provided, that none of the following shall be deemed in and of themselves to constitute, and none of the following shall be taken into account in determining whether there has been (or whether there is reasonably expected to be), an IMC Material Adverse Effect: any change, effect, event, occurrence or state of facts relating to, caused by or resulting from (i) the United States or any international economy or the United States or international financial markets in general (provided that IMC is not disproportionately affected thereby), (ii) the industries in which IMC and its Subsidiaries operate in general (provided that IMC is not disproportionately affected thereby), (iii) the announcement of this Agreement or the transactions contemplated hereby, or (yiv) a material adverse effect on any non-cash asset or goodwill impairment charges with respect to matters discussed with Cargill prior to the Company’s ability to perform its obligations, or consummate the Transactions, in accordance with the terms date of this Agreement, providedincluding any write-off or reclassification of goodwill recorded, howevertaken or created by IMC or PLP relating to PLP or IMC’s investment, that in no event shall directly or indirectly, therein or any loss, reclassification or write-off related to any disposition of the following, either alone or in combination, be deemed to constitute, a Company Material Adverse Effect: (1) changes in conditions in the United States or global economy or capital or financial markets generally, including changes in interest or exchange rates; (2) any Effect caused by the announcement, pendency or performance of this Agreement, the consummation of the Transactions IMC Chemicals Business Unit or the identity of Parent; (3) any change in the trading prices or trading volume of the Company Common Stock (provided that the exception in this clause (3) shall not prevent or otherwise affect a determination that any Effect underlying such change has resulted in, or contributed to, a Company Material Adverse Effect; (4) acts of war, sabotage or terrorism, or any escalation or worsening of any such acts of war, sabotage or terrorism; (5) earthquakes, hurricanes, floods or other natural disasters; (6) any Effect consisting of or to the extent resulting from any action taken by the Company or its Subsidiaries that is required by this Agreement; or (7) any change in the composition of the Company’s Board of Directors pursuant to Section 1.3(a); provided, however, that with respect to clauses (1), (4) and (5), such Effect does not have a materially disproportionate and adverse effect on the Company and its Subsidiaries, taken as a whole, relative to most other similarly situated, comparable companies and their respective subsidiaries, taken as a whole, in the industry in which the Company and its Subsidiaries operate; provided, further, that, any failure to meet internal or published projections, forecasts or revenue or earning predictions for any period shall not, in and of itself, constitute a Company Material Adverse EffectIMC Salt Business Unit.

Organization, Standing and Corporate Power. (a) Each The Company and each of its Subsidiaries is a corporation duly organized, validly existing and, in the case of the Company and its Subsidiaries is duly incorporated or organizedU.S. Subsidiaries, validly existing and in good standing (or equivalent status) under the applicable Law Laws of the state or jurisdiction of its incorporation or organization. Each of the Company in which it is incorporated and its Subsidiaries has all requisite corporate power and authority necessary to own, own or lease and operate all of its properties and assets and to carry on its business as it is now being conducted conducted. The Company and each of its U.S. Subsidiaries is duly licensed or qualified to do business and is in good standing (or equivalent status) as a foreign corporation or other entity in each jurisdiction in which the nature of the business or activities conducted by it or the character or location of the properties and assets owned, owned or leased or operated by it requires makes such license licensing or qualificationqualification necessary, except where the failure to be so licensed, qualified or in good standing (standing, individually or equivalent status) in the aggregate, has not had and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect. For purposes of this Agreement, the term “Company Material Adverse Effect” shall mean any change, event, development, occurrence or circumstance or occurrence (each, an “Effect”) that, individually or when taken together with all other Effects, (x) which has a material adverse effect on the business, results of operations, operations or financial condition (financial or otherwise), business or assets of the Company and its Subsidiaries, Subsidiaries taken as a whole, or (y) a material adverse effect on the Company’s ability to perform its obligations, or consummate the Transactions, in accordance with the terms of this Agreement, ; provided, however, that in no event shall any none of the following, following shall be deemed either alone or in combination, be deemed combination to constitute, and none of the following shall be taken into account in determining whether there has been or will be, a Company Material Adverse Effect: (1A) changes any effect, change, event, occurrence or circumstance relating to the U.S. or any foreign economy in conditions general to the extent that such effect, change, event, occurrence or circumstance does not have a materially disproportionate effect on the Company and its Subsidiaries taken as a whole; (B) any effect, change, event, occurrence or circumstance relating to the industries in which the Company operates to the extent that such effect, change, event, occurrence or circumstance does not have a materially disproportionate effect on the Company and its Subsidiaries taken as a whole; (C) any effect, change, event, occurrence or circumstance relating to fluctuations in the United States or global economy or capital or financial markets generally, including changes in interest or exchange ratesvalue of currencies; (2D) any Effect caused by effect, change, event, occurrence or circumstance relating to acts of terrorism, war, national or international calamity or any other similar event to the announcementextent that such effect, pendency change, event, occurrence or performance circumstance does not have a materially disproportionate effect on the Company and its Subsidiaries taken as a whole; (E) any effect, change, event, occurrence or circumstance that arises out of or results from the announcement of this Agreement, the consummation existence of this Agreement or the fact that any of the Transactions may be consummated (including any effect, change, event, occurrence or circumstance resulting from or relating to any litigation, any loss of or delay in placing customer orders, any disruption in supplier, distributor, reseller or similar relationships or any departure or loss of employees, in each case that arises out of or results from the announcement of this Agreement, the existence of this Agreement or the identity fact that any of Parentthe Transactions may be consummated); (3F) any change in the trading prices or trading volume failure of the Company Common Stock to meet internal or analysts’ expectations or projections (provided it being understood, however, that the exception in underlying circumstances giving rise to such failure may be taken into account unless otherwise excluded pursuant to this clause (3) shall not prevent or otherwise affect a determination that any Effect underlying such change has resulted in, or contributed to, a Company Material Adverse Effectparagraph); (4) acts of war, sabotage or terrorism, or any escalation or worsening of any such acts of war, sabotage or terrorism; (5) earthquakes, hurricanes, floods or other natural disasters; (6G) any Effect consisting effect, change, event, occurrence or circumstance that arises out of or to the extent resulting results from any action taken by the Company or its Subsidiaries that is with Parent’s consent or from compliance by the Company with the terms of, or the taking of any action required or contemplated by this Agreement; or (7H) any change in the composition of the Company’s Board of Directors pursuant to Section 1.3(aRestructuring Plan (as hereinafter defined); provided, however, that with respect to clauses (1), (4) and (5), such Effect does not have a materially disproportionate and adverse effect on the Company and its Subsidiaries, taken as a whole, relative to most other similarly situated, comparable companies and their respective subsidiaries, taken as a whole, in the industry in which the Company and its Subsidiaries operate; provided, further, that, any failure to meet internal or published projections, forecasts or revenue or earning predictions for any period shall not, in and of itself, constitute a and any effect, change, event, occurrence or circumstance that arises out of or results from the implementation of it; (I) any effect, change, event, occurrence or circumstance arising out of or resulting from the failure of the Company Material Adverse Effect6 or its Subsidiaries to take any action referred to in Section 5.2 due to Parent’s unreasonable withholding of consent or delaying its consent; and (J) any effect, change, event, occurrence or circumstance that arises out of or results from any of the matters set forth in Section 3.1 of the Disclosure Schedule.

Organization, Standing and Corporate Power. (a) Each of the The Company and each of its Subsidiaries is a corporation or other entity duly incorporated or organized, validly existing and and, where applicable, in good standing (or equivalent status) under the applicable Law Laws of the state jurisdiction in which it is incorporated or jurisdiction of its incorporation or organization. Each of the Company organized and its Subsidiaries has all requisite corporate power and authority necessary to own, own or lease and operate all of its properties and assets and to carry on its business as it is now being conducted and as heretofore been conducted. The Company and each of its Subsidiaries is duly licensed or qualified to do business and and, where applicable, is in good standing (or equivalent status) as a foreign corporation or other entity in each jurisdiction in which the nature of the business or activities conducted by it or the character or location of the properties and assets owned, owned or leased or operated by it requires makes such license licensing or qualificationqualification necessary, except where the failure to be so licensed, qualified or in good standing (or equivalent status) has not had and would not reasonably be expected to havestanding, individually or in the aggregate, does not constitute a Company Material Adverse Effect. For purposes of this Agreement, the term “Company Material Adverse Effect” shall mean any change, event, developmentoccurrence or circumstance which, circumstance either alone or occurrence (eachin combination with other changes, an “Effect”) thatevents, individually occurrences or when taken together with all other Effectscircumstances, (xi) has or is reasonably likely to have a material adverse effect on the business, results of operations, condition (financial or otherwise), business assets (tangible or assets intangible), liabilities (including contingent liabilities) or operations of the Company and its Subsidiaries, Subsidiaries taken as a whole, whole or (yii) a material adverse effect on could reasonably be expected to prevent or delay beyond the Outside Date (as defined in Section 7.1) the Company’s ability to perform its obligations, or consummate consummation of the Transactions, in accordance with the terms of this Agreement, ; provided, however, that in no event shall any none of the following, following shall be deemed either alone or in combination, be deemed combination to constitute, and none of the following shall be taken into account in determining whether there has been or will be, a Company Material Adverse Effect: (1) changes in conditions in the United States or global economy or capital or financial markets generally, including changes in interest or exchange rates; (2v) any Effect caused by change, event, occurrence or circumstance relating to the announcement, pendency or performance of this Agreement, the consummation of the Transactions or the identity of Parent; (3) any change in the trading prices or trading volume of the Company Common Stock (provided that the exception in this clause (3) shall not prevent or otherwise affect a determination that any Effect underlying such change has resulted in, or contributed to, a Company Material Adverse Effect; (4) acts of war, sabotage or terrorism, U.S. or any escalation or worsening of any such acts of war, sabotage or terrorism; (5) earthquakes, hurricanes, floods or other natural disasters; (6) any Effect consisting of or foreign economy in general to the extent resulting from any action taken by the Company that such change, event, occurrence or its Subsidiaries that is required by this Agreement; or (7) any change in the composition of the Company’s Board of Directors pursuant to Section 1.3(a); provided, however, that with respect to clauses (1), (4) and (5), such Effect circumstance does not have a materially disproportionate and adverse effect on the Company and its Subsidiaries, Subsidiaries taken as a whole, relative whole as compared to most other similarly situated, comparable companies and their respective subsidiaries, taken as a whole, in the industry industries in which the Company and its Subsidiaries operateconduct their business; provided(w) any change, furtherevent, thatoccurrence or circumstance relating to the industries in which the Company operates to the extent that such change, event, occurrence or circumstance does not have a materially disproportionate effect on the Company and its Subsidiaries taken as a whole as compared to other companies in the industries in which the Company and its Subsidiaries conduct their business; (x) any change, event, occurrence or circumstance relating to acts of terrorism, war, national or international calamity or any other similar event to the extent that such change, event, occurrence or circumstance does not have a materially disproportionate effect on the Company and its Subsidiaries taken as a whole as compared to other companies in the industries in which the Company and its Subsidiaries conduct their business; (y) any change, event, occurrence or circumstance that arises out of or results from any loss of or delay in placing customer orders that arises from or by virtue of the announcement or pendency of this Agreement or any of the Transactions; or (z) the failure of the Company to meet internal or published projectionsexternal analysts’ expectations (it being understood, forecasts or revenue or earning predictions for any period shall nothowever, in and of itself, constitute a Company Material Adverse Effectthat the underlying circumstances giving rise to such failure may be taken into account unless otherwise excluded pursuant to this paragraph).

Organization, Standing and Corporate Power. (a) Each of the Company and its Subsidiaries is a corporation duly incorporated or organized, validly existing and in good standing (or equivalent status) under the applicable Law Laws of the state or jurisdiction of its incorporation or organization. Each of the Company in which it is incorporated and its Subsidiaries has all requisite corporate power and authority necessary to own, own or lease and operate all of its properties and assets and to carry on its business as it is now being conducted and as currently proposed by its management to be conducted. Each of the Company and its Subsidiaries is duly licensed or qualified to do business and is in good standing (or equivalent status) as a foreign corporation or other entity in each jurisdiction in which the nature of the business or activities conducted by it or the character or location of the properties and assets owned, owned or leased or operated by it requires makes such license licensing or qualificationqualification necessary, except where the failure to be so licensed, qualified or in good standing (or equivalent status) has not had and would not reasonably be expected to havestanding, individually or in the aggregate, has not had and could not reasonably be expected to have a Company Material Adverse Effect. For purposes of this Agreement, the term “Company Material Adverse Effect” “ shall mean any change, event, development, circumstance or occurrence (each, an “Effect”) that, individually or when taken together with all other Effects, (x) has a material adverse effect on (i) the business, properties, assets, liabilities, results of operations, operations or financial condition (financial or otherwise), business or assets of the Company and its Subsidiaries, Subsidiaries taken as a whole, other than any such effect (x) relating to or affecting the economy or regulatory or political conditions in general or (y) a material adverse effect on relating to or affecting the industries in which the Company operates in general and (in each case under (x) and (y)) not specifically relating to (or disproportionately affecting) the Company, or (ii) the Company’s ability to to, in a timely manner, perform its obligations, obligations under this Agreement or consummate the Transactions, in accordance . (b) Section 3.1(b) of the Company Disclosure Schedule lists all Subsidiaries of the Company together with the terms jurisdiction of organization of each such Subsidiary. All the outstanding shares of capital stock of, or other equity interests in, each such Subsidiary have been duly authorized and validly issued and are fully paid and nonassessable and are owned directly or indirectly by the Company free and clear of all liens, pledges, charges, mortgages, encumbrances, adverse rights or claims and security interests of any kind or nature whatsoever (including any restriction on the right to vote or transfer the same, except for such transfer restrictions of general applicability as may be provided under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the “Securities Act“), and the “blue sky” laws of the various States of the United States) (collectively, “Liens“). Except as set forth in Section 3.1(b) of the Company Disclosure Schedule, the Company does not own, directly or indirectly, any capital stock, voting securities or equity interests in any Person. (c) The Company has delivered to Parent complete and correct copies of its certificate of incorporation and by-laws (the “Company Charter Documents“) as amended to the date of this Agreement, provided, however, that . All such Company Charter Documents are in no event shall full force and effect and the Company is not in violation of any of their respective provisions. The Company has made available to Parent and its representatives correct and complete copies of the followingminutes (or, either alone or in combinationthe case of minutes that have not yet been finalized, be deemed to constitutedrafts thereof) of all meetings of stockholders, the Board of Directors and each committee of the Board of Directors of the Company held since January 1, 2002. (d) The Company is and at all times has been a Company Material Adverse Effect: (1) changes in conditions in citizen of the United States or global economy or capital or financial markets generally, including changes in interest or exchange rates; (2) any Effect caused by within the announcement, pendency or performance meaning of this Agreement, the consummation Section 2 of the Transactions or Shipping Act, 1916, as amended, for the identity purposes of Parent; (3) any change owning and operating vessels in the trading prices or trading volume U.S. coastwise trade. Except as set forth in Section 3.1(d) of the Company Disclosure Schedule, each Significant Stockholder, for all periods during which such Significant Stockholder held shares of Company Common Stock (provided that Stock, has been a citizen of the exception in this clause (3) shall not prevent or otherwise affect a determination that any Effect underlying such change has resulted inUnited States within the meaning of Section 2 of the Shipping Act, or contributed to1916, a Company Material Adverse Effect; (4) acts as amended, for the purposes of war, sabotage or terrorism, or any escalation or worsening of any such acts of war, sabotage or terrorism; (5) earthquakes, hurricanes, floods or other natural disasters; (6) any Effect consisting of or to the extent resulting from any action taken by the Company or its Subsidiaries that is required by this Agreement; or (7) any change owning and operating vessels in the composition of the Company’s Board of Directors pursuant to Section 1.3(a); provided, however, that with respect to clauses (1), (4) and (5), such Effect does not have a materially disproportionate and adverse effect on the Company and its Subsidiaries, taken as a whole, relative to most other similarly situated, comparable companies and their respective subsidiaries, taken as a whole, in the industry in which the Company and its Subsidiaries operate; provided, further, that, any failure to meet internal or published projections, forecasts or revenue or earning predictions for any period shall not, in and of itself, constitute a Company Material Adverse EffectU.S. coastwise trade.

Organization, Standing and Corporate Power. (a) Each of the Company and its significant Subsidiaries is duly incorporated or organized, validly existing and in good standing (or equivalent status) under the applicable Law Laws of the state or jurisdiction of its incorporation or organization. Each of the Company in which it is organized and its Subsidiaries has all requisite corporate or other comparable power and authority necessary to own, own or lease and operate all of its properties and assets and to carry on its business as it is now being conducted conducted, except in the case of significant Subsidiaries where any such failure has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect (as defined below). Each of the Company and its significant Subsidiaries is duly licensed or qualified to do business and is in good standing (or equivalent statusto the extent such concepts are applicable) as a foreign corporation or other entity in each jurisdiction in which the nature of the business or activities conducted by it or the character or location of the properties and assets owned, owned or leased or operated by it requires makes such license licensing or qualificationqualification necessary, except where the failure to be so licensed, qualified or in good standing (or equivalent status) has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. For purposes of this Agreement, “Company Material Adverse Effect” shall mean any change, event, development, circumstance or occurrence (each, each an “Effect”) that, individually or when taken together with all other Effects, (x) that has a material adverse effect on the results of operations, condition (financial or otherwise)condition, assets, business or assets properties of the Company and its Subsidiaries, taken as a whole, or (y) a material adverse effect on the Company’s ability to perform its obligations, or consummate the Transactions, in accordance with the terms of this Agreement, ; provided, however, that in no event shall any none of the following, either alone and no Effect arising out of, or resulting from, the following, shall constitute or be taken into account, individually or in combinationthe aggregate, be deemed to constitute, in determining whether a Company Material Adverse EffectEffect has occurred or would reasonably be expected to occur: any Effect (A) generally affecting (1) the industries in which the Company and its Subsidiaries operate (including changes in conditions commodity prices) or (2) the economy, credit or financial or capital markets, in the United States or global economy or capital or financial markets generallyelsewhere in the world, including changes in interest or exchange rates; , or (B) arising out of, resulting from or attributable to (1) changes or prospective changes in Law or in GAAP or in accounting standards, or any changes or prospective changes in the interpretation or enforcement of any of the foregoing, or any changes or prospective changes in general legal, regulatory or political conditions, (2) any Effect caused by the announcementnegotiation, pendency execution or performance announcement of this AgreementAgreement (other than for purposes of any representation or warranty contained in Section 4.3), the consummation of the Transactions or the identity of Parent; (3) any change in the trading prices natural disasters or trading volume of the Company Common Stock (provided that the exception in this clause (3) shall not prevent or otherwise affect a determination that any Effect underlying such change has resulted in, or contributed to, a Company Material Adverse Effect; (4) acts of warwar (whether or not declared), sabotage or terrorism, or any escalation or worsening of any such acts of warwar (whether or not declared), sabotage or terrorism; , (54) earthquakes, hurricanes, floods or other natural disasters; (6) any Effect consisting of or to the extent resulting from any action taken by the Company or its Subsidiaries that is required by this Agreement; Agreement (other than obligations to operate in the ordinary course) or with the written consent, or at the written request, of Parent, or the failure to take any action by the Company if that action is prohibited by this Agreement to the extent that the Company fails to receive any required consent from Parent after delivering a written request therefor to Parent a reasonable period of time prior to the time such action was to have been taken, (5) any change or prospective change in the Company’s credit ratings, (6) any decline in the market price, or change in trading volume, of the capital stock of the Company or (7) any change failure to meet any projections, forecasts, guidance, estimates, budgets or financial or operating predictions of revenue, earnings, cash flow or cash position (it being understood that the exceptions in clauses (5), (6) and (7) shall not prevent or otherwise affect a determination that the composition underlying cause of any such change, decline or failure referred to therein (if not otherwise falling within any of the Company’s Board of Directors pursuant to Section 1.3(aexceptions provided by clause (A) and clauses (B)(1) through (4) hereof) is a Company Material Adverse Effect); providedprovided further, however, that with respect any Effect referred to clauses in clause (1A), clause (4B)(1) and or clause (5), B)(3) may be taken into account in determining whether or not there has been a Company Material Adverse Effect to the extent such Effect does not has had or would reasonably be expected to have a materially disproportionate and adverse effect on the Company and its Subsidiaries, taken as a whole, relative as compared to most other similarly situated, comparable companies and their respective subsidiaries, taken as a whole, participants in the industry in which the Company and its Subsidiaries operate; provided, further, that, any failure to meet internal or published projections, forecasts or revenue or earning predictions for any period shall not, in and of itself, constitute a Company Material Adverse Effect.