Common use of Existence; Good Standing; Corporate Authority Clause in Contracts

Existence; Good Standing; Corporate Authority. Each of the Company and each of its Subsidiaries is (i) a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation and (ii) is duly licensed or qualified to do business as a foreign corporation and is in good standing under the laws of any other state of the United States in which the character of the properties owned or leased by it or in which the transaction of its business makes such qualification necessary, except where the failure to be so qualified or to be in good standing would not have, individually or in the aggregate, a material adverse effect on the business, -11- 13 operations, revenues, assets or financial condition of the Company and its Subsidiaries taken as a whole or the ability of the Company and its Subsidiaries to conduct their business after the Closing substantially consistent with the manner conducted in the past (a "Material Adverse Effect") (it being understood that (i) any adverse effect that is caused by conditions affecting the economy or securities markets generally shall not be taken into account in determining whether there has been a Material Adverse Effect (ii) any adverse effect that is caused by conditions affecting the primary industry in which the Company currently competes shall not be taken into account in determining whether there has been a Material Adverse Effect (provided that such effect does not affect the Company in a disproportionate manner) and (iii) any adverse effect resulting from the Offer, the Merger or any of the transactions contemplated hereby or the announcement thereof (including those resulting from litigation brought or threatened against the Company or any member of its Board of Directors in respect thereof) shall not be taken into account in determining whether there has been a Material Adverse Effect). Each of the Company and each of its Subsidiaries has all requisite corporate power and authority to own or lease and operate its properties and carry on its business as now conducted. The Company has heretofore made available to Purchaser true and correct copies of the Company's Certificate of Incorporation and By-Laws as currently in effect.

Existence; Good Standing; Corporate Authority. Each of the Company and each of its Subsidiaries is (i) a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation and (ii) is duly licensed or qualified to do business as a foreign corporation and is in good standing under the laws of any other state of the United States in which the character of the properties owned or leased by it or in which the transaction of its business makes such qualification necessary, except where the failure to be so qualified or to be in good standing would not have and would not be likely to have, individually or in the aggregate, a material adverse effect on the business, -11- 13 operations, revenues, assets or financial condition of the Company and its Subsidiaries taken as a whole or the ability of the Company and its Subsidiaries to conduct their business after the Closing substantially consistent in all material respects with the manner conducted in the past (a "Material Adverse Effect") (it being understood ); provided, however, that "Material Adverse Effect" shall not include any change, effect, condition, event or circumstance arising out of or attributable to (i) any adverse effect decrease in the market price of the Shares (but not any change, effect, condition, event or circumstance underlying such decrease to the extent that is caused by conditions affecting the economy or securities markets generally shall not be taken into account in determining whether there has been it would otherwise constitute a Material Adverse Effect Effect), (ii) any adverse effect changes, effects, conditions, events or circumstances that is caused by conditions affecting generally affect the primary industry industries in which the Company currently competes shall not be taken into account in determining whether there has been a Material Adverse Effect or the Subsidiaries operate (provided that such effect does not affect the Company in a disproportionate manner) including legal and regulatory changes), (iii) any adverse effect resulting general economic conditions or changes, effects, conditions or circumstances affecting the securities markets generally or (iv) changes arising from the Offer, the Merger or any consummation of the transactions contemplated hereby or the announcement thereof (including those resulting from litigation brought or threatened against of the Company or any member execution of its Board of Directors in respect thereof) shall not be taken into account in determining whether there has been a Material Adverse Effect)this Agreement. Each of the Company and each of its Subsidiaries has all requisite corporate power and authority to own or lease and operate its properties and carry on its business as now conducted. The Company has heretofore made available to Purchaser true Parent true, accurate and correct complete copies of the Company's Certificate certificate of Incorporation incorporation and By-Laws by- laws, each as amended to date as and currently in effect.

Existence; Good Standing; Corporate Authority. Each of the Company and each of its Subsidiaries is (i) a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation and (ii) is duly licensed or qualified to do business as a foreign corporation and is in good standing under the laws of any other state of the United States in which the character of the properties owned or leased by it or in which the transaction of its business makes such qualification necessary, except where the failure to be so qualified or to be in good standing would not have and would not be likely to have, individually or in the aggregate, a material adverse effect on the business, -11- 13 operations, revenues, assets or financial condition of the Company and its Subsidiaries taken as a whole or the ability of the Company and its Subsidiaries to conduct their business after the Closing substantially consistent in all material respects with the manner conducted in the past (a "MATERIAL ADVERSE EFFECT"); provided, however, that "Material Adverse Effect") (it being understood that " shall not include any change, effect, condition, event or circumstance arising out of or attributable to (i) any adverse effect decrease in the market price of the Shares (but not any change, effect, condition, event or circumstance underlying such decrease to the extent that is caused by conditions affecting the economy or securities markets generally shall not be taken into account in determining whether there has been it would otherwise constitute a Material Adverse Effect Effect), (ii) any adverse effect changes, effects, conditions, events or circumstances that is caused by conditions affecting generally affect the primary industry industries in which the Company currently competes shall not be taken into account in determining whether there has been a Material Adverse Effect or the Subsidiaries operate (provided that such effect does not affect the Company in a disproportionate manner) including legal and regulatory changes), (iii) any adverse effect resulting general economic conditions or changes, effects, conditions or circumstances affecting the securities markets generally or (iv) changes arising from the Offer, the Merger or any consummation of the transactions contemplated hereby or the announcement thereof (including those resulting from litigation brought or threatened against of the Company or any member execution of its Board of Directors in respect thereof) shall not be taken into account in determining whether there has been a Material Adverse Effect)this Agreement. Each of the Company and each of its Subsidiaries has all requisite corporate power and authority to own or lease and operate its properties and carry on its business as now conducted. The Company has heretofore made available to Purchaser true Parent true, accurate and correct complete copies of the Company's Certificate certificate of Incorporation incorporation and Byby-Laws laws, each as amended to date as and currently in effect.

Existence; Good Standing; Corporate Authority. Each of the Company and each of its Subsidiaries is (i) a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation and (ii) is duly licensed or qualified to do business as a foreign corporation and is in good standing under the laws of any other state of the United States in which the character of the properties owned or leased by it or in which the transaction of its business makes such qualification necessary, except where the failure to be so qualified or to be in good standing would not have, individually or in the aggregate, a material adverse effect on the business, -11- 13 operations, revenues, assets or financial condition of the Company and its Subsidiaries taken as a whole or the ability of the Company and its Subsidiaries to conduct their business after the Closing substantially consistent with the manner conducted in the past (a "Material Adverse EffectMATERIAL ADVERSE EFFECT") (it being understood that (i) any adverse effect that is caused by conditions affecting the economy or securities markets generally shall not be taken into account in determining whether there has been a Material Adverse Effect (ii) any adverse effect that is caused by conditions affecting the primary industry in which the Company currently competes shall not be taken into account in determining whether there has been a Material Adverse Effect (provided that such effect does not affect the Company in a disproportionate manner) and (iii) any adverse effect resulting from the Offer, the Merger or any of the transactions contemplated hereby or the announcement thereof (including those resulting from litigation brought or threatened against the Company or any member of its Board of Directors in respect thereof) shall not be taken into account in determining whether there has been a Material Adverse Effect). Each of the Company and each of its Subsidiaries has all requisite corporate power and authority to own or lease and operate its properties and carry on its business as now conducted. The Company has heretofore made available to Purchaser true and correct copies of the Company's Certificate of Incorporation and By-Laws as currently in effect.

Existence; Good Standing; Corporate Authority. Each (a) The Company is a corporation duly organized and is validly existing and in good standing under the laws of the State of Delaware, (b) each Subsidiary of the Company and each of its Subsidiaries is (i) a corporation duly organized, organized and is validly existing and in good standing under the laws of its jurisdiction of incorporation organization, and (iic) each of the Company and its Subsidiaries is duly licensed or qualified to do business as a foreign corporation and is in good standing under the laws of any each other state of the United States or the laws of any foreign jurisdiction, if applicable, in which the character of the properties owned owned, licensed or leased by it or in which the transaction of its business makes such qualification necessary, except except, in the case of the foregoing clauses (b) and (c), where the failure to be so licensed or qualified or to be in good standing standing, has not had and would not havereasonably be expected to have a Company Material Adverse Effect (provided, that references to good standing in clauses (b) and (c) above shall not refer to FTD UK Holdings Limited and its Subsidiaries incorporated under the laws of England and Wales). For purposes of this Agreement, “Company Material Adverse Effect” means any change, circumstance, development, occurrence, event, fact or effect (each, a “Company Effect”) that, when considered either individually or in the aggregatetogether with all other Company Effects, a material is or is reasonably likely to be materially adverse effect on to (i) the business, -11- 13 operationsproperties, revenuesassets, assets liabilities, consolidated results of operations or condition (financial condition or otherwise) of the Company and its Subsidiaries Subsidiaries, taken as a whole or (ii) the ability of the Company to consummate the transactions contemplated by this Agreement; provided, that any such Company Effect resulting or arising from or relating to any of the following matters shall not be considered when determining whether a Company Material Adverse Effect has occurred or would reasonably be expected to occur (i) any conditions, developments or changes affecting the industries in which the Company and its Subsidiaries to conduct their business after operate; (ii) any conditions affecting the Closing substantially consistent United States general economy or the general economy in any geographic area in which the Company or its Subsidiaries operate or developments or changes therein; (iii) political conditions, including acts of war (whether or not declared), armed hostilities and terrorism, or developments or changes therein; (iv) any conditions resulting from natural disasters; (v) compliance by the Company and its Subsidiaries with the manner conducted covenants contained in this Agreement (provided that this clause shall not apply to Company Effects resulting from compliance with Section 7.1(a)); (vi) the past (a "Material Adverse Effect") failure of the financial or operating performance of the Company or its Subsidiaries to meet internal projections or budgets for any period in and of itself (it being understood that any fact or development giving rise to or contributing to such failure may be the cause of a Company Material Adverse Effect if not otherwise excluded pursuant to this definition); (vii) any action taken or omitted to be taken by or at the written request or with the written consent of Purchaser; (viii) any announcement of this Agreement or the transactions contemplated hereby, in each case, solely to the extent due to such announcement; (ix) changes in any Laws or accounting principles; or (x) any Company Effects arising out of or resulting from any legal claims or other proceedings made by any of the Company’s stockholders (on their own behalf or on behalf of the Company) arising out of or related to this Agreement or the Merger; provided, however, that Company Effects set forth in clauses (i), (ii), (iii), (iv) any adverse effect that is caused by conditions affecting the economy or securities markets generally shall not and (ix) above may be taken into account in determining whether there has been or is a Company Material Adverse Effect (ii) any adverse effect that is caused by conditions affecting if and only to the primary extent such Company Effects have a disproportionate impact on the Company and its Subsidiaries, taken as a whole, relative to the other participants in the floral industry in which North America and the United Kingdom (after taking into account the size of the Company currently competes shall not be taken into account in determining whether there has been a Material Adverse Effect (provided that and its Subsidiaries relative to such effect does not affect the Company in a disproportionate manner) and (iii) any adverse effect resulting from the Offer, the Merger or any of the transactions contemplated hereby or the announcement thereof (including those resulting from litigation brought or threatened against the Company or any member of its Board of Directors in respect thereof) shall not be taken into account in determining whether there has been a Material Adverse Effectother participants). Each of the Company and each of its Subsidiaries has all requisite corporate power and authority to own or own, operate, license and lease and operate its properties and carry on its business as now conducted, except where the failure to have such power and authority would not reasonably be expected to have a Company Material Adverse Effect. The Company has heretofore made available to Purchaser true and correct copies of the Company's Certificate certificate of Incorporation incorporation and By-Laws bylaws or other governing instruments of the Company and each of its material Subsidiaries as currently in effect. The corporate records and minute books of the Company and each of its Subsidiaries reflect all material actions taken and authorizations made at meetings of such companies’ board of directors or any committees thereof and at any stockholders’ meetings thereof.

Existence; Good Standing; Corporate Authority. Each of the The Company and each of its Subsidiaries is (i) a corporation duly organizedincorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation and (ii) Minnesota. The Company is duly licensed or qualified to do business as a foreign corporation and is in good standing under the laws of any other state of the United States in which the character of the properties owned or leased by it or in which the transaction of its business makes such qualification necessary, except where the failure to be so qualified or to be in good standing would could not have, individually or in the aggregate, reasonably be expected to have a material adverse effect on the business, -11- 13 operations, revenues, assets or financial condition of the Company and its Subsidiaries taken as a whole or the ability of the Company and its Subsidiaries to conduct their business after the Closing substantially consistent with the manner conducted in the past (a "Material Adverse Effect") (it being understood that (i) any adverse effect that is caused by conditions affecting the economy or securities markets generally shall not be taken into account in determining whether there has been a Material Adverse Effect (ii) any adverse effect that is caused by conditions affecting the primary industry in which the . The Company currently competes shall not be taken into account in determining whether there has been a Material Adverse Effect (provided that such effect does not affect the Company in a disproportionate manner) and (iii) any adverse effect resulting from the Offer, the Merger or any of the transactions contemplated hereby or the announcement thereof (including those resulting from litigation brought or threatened against the Company or any member of its Board of Directors in respect thereof) shall not be taken into account in determining whether there has been a Material Adverse Effect). Each of the Company and each of its Subsidiaries has all requisite corporate power and authority to own or own, operate and lease and operate its properties and carry on its business as now conducted. Each of the Company's Subsidiaries is a corporation, partnership or national bank duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization, has the corporate or partnership power and authority to own its properties and to carry on its business as it is now being conducted, and is duly qualified to do business and is in good standing in each jurisdiction in which the ownership of its property or the conduct of its business requires such qualification, except for jurisdictions in which such failure to be so qualified or to be in good standing could not reasonably be expected to have a Company Material Adverse Effect. The Company has heretofore made available to Purchaser true and correct copies of the Company's Certificate articles of Incorporation incorporation and By-Laws bylaws previously made available to Parent are true and correct. As used in this Agreement, (a) the term "Company Material Adverse Effect" means any change, effect, event or condition that has had or could reasonably be expected to (i) have a material adverse effect on the business, results of operations or financial condition of the Company and its Subsidiaries, taken as currently a whole (other than any change, effect, event or condition generally applicable to the industry in effectwhich the Company and its Subsidiaries operate or changes in general economic conditions, except to the extent such changes, effects, events or conditions disproportionately affect the Company and its Subsidiaries, taken as a whole), or (ii) prevent or materially delay the Company's ability to consummate the transactions contemplated hereby and (b) the term "Subsidiary" when used with respect to any party means any corporation or other organization, whether incorporated or unincorporated, of which such party directly or indirectly owns or controls at least a majority of the securities or other interests having by their terms ordinary voting power to elect a majority of the board of directors or others performing similar functions.

Existence; Good Standing; Corporate Authority. Each of the The Company and each of --------------------------------------------- its Subsidiaries subsidiaries is (ia) a corporation duly organizedincorporated, validly existing and in - good standing under the laws of its jurisdiction of incorporation and (iib) is - duly licensed or qualified to do business as a foreign corporation and is in good standing under the laws of any other state of the United States jurisdiction in which the character of the properties owned or leased by it or in which the transaction of its business makes such licensure, qualification or good standing necessary, except where the failure to be so qualified in good standing or to be in good standing would not haveso licensed or qualified, individually or in the aggregate, would not, or would not reasonably be expected to, have a Material Adverse Effect. "Material Adverse Effect" means any event, ----------------------- occurrence, fact, condition, change, development or effect that (i) has a - material adverse effect on upon the business, -11- 13 operations, revenuesresults of operations, assets or financial condition of the Company and its Subsidiaries subsidiaries, taken as a whole whole, or (ii) prevents the ability Company from consummating the transactions -- contemplated hereby; provided, in either case, that "Material Adverse Effect" -------- ----------------------- shall not include any change in or effect upon the business, assets, financial condition or results of operations of the Company and any of its Subsidiaries to conduct their business after subsidiaries directly arising out of (a) changes in generally accepted accounting principles, - (b) acts or omissions of the Closing substantially consistent Company or any of its subsidiaries taken with the manner conducted in - prior written consent of the past Parent, (a "Material Adverse Effect"c) (it being understood that (i) any adverse effect that is caused by conditions conditions, events or circumstances - generally affecting the economy United States economy, the world economy, or securities markets generally shall not be taken into account in determining whether there has been a Material Adverse Effect (ii) any adverse effect that is caused by conditions affecting the primary segments of either the United States insurance brokerage or reinsurance brokerage industry or the world insurance brokerage or reinsurance brokerage industry in which the Company currently competes shall not be taken into account participates, (d) the litigation set forth in determining whether there has been a Material Adverse Effect (provided that such effect does not affect - Section 4.1 of the Company in a disproportionate manner) and Disclosure Letter, (iiie) any adverse effect resulting from claim made by the Offer, the Merger Parent - or any of the transactions contemplated hereby or the announcement thereof (including those resulting from litigation brought or threatened its affiliates against the Company or any member of its Board subsidiaries in any litigation or otherwise, (f) any changes or effects resulting solely from the - announcement of Directors the Offer or the Merger, and (g) the loss of the customer - accounts or contracts set forth in respect thereof) shall not be taken into account Section 4.1 of the Company Disclosure Letter (as defined in determining whether there has been a Material Adverse EffectSection 4.3). Each of the Company and each of its Subsidiaries subsidiaries has all the requisite corporate power and authority to own or own, operate and lease and operate its properties and carry on its business as now conducted. The Company has heretofore made available delivered to Purchaser the Parent true and correct copies of the Company's Certificate of Incorporation and By-Laws laws of the Company (the "Constituent Documents") and the organizational --------------------- documents of each subsidiary, in each case as currently amended through the date hereof, and all such Constituent Documents and organizational documents are in effectfull force and effect as of the date hereof.

Existence; Good Standing; Corporate Authority. Each of the The Company and each of its Subsidiaries is (i) a corporation duly organizedincorporated, validly existing and in good standing under the laws of its jurisdiction the State of incorporation and (ii) Maryland. The Company is duly licensed or qualified to do business as a foreign corporation and is in good standing under the laws of any other each state of the United States in which the character of the properties owned or leased by it or in which the transaction of its business makes such qualification necessary, except where the failure to be so qualified or to be in good standing would not have, individually or in the aggregate, have a material adverse effect on the business, -11- 13 operations, revenues, assets or financial condition of the Company and its Subsidiaries taken as a whole or the ability of the Company and its Subsidiaries to conduct their business after the Closing substantially consistent with the manner conducted in the past (a "Material Adverse Effect") (it being understood that (i) any adverse effect that is caused by conditions affecting the economy or securities markets generally shall not be taken into account in determining whether there has been a Material Adverse Effect (ii) any adverse effect that is caused by conditions affecting the primary industry in which the . The Company currently competes shall not be taken into account in determining whether there has been a Material Adverse Effect (provided that such effect does not affect the Company in a disproportionate manner) and (iii) any adverse effect resulting from the Offer, the Merger or any of the transactions contemplated hereby or the announcement thereof (including those resulting from litigation brought or threatened against the Company or any member of its Board of Directors in respect thereof) shall not be taken into account in determining whether there has been a Material Adverse Effect). Each of the Company and each of its Subsidiaries has all requisite corporate power and authority to own or own, operate and lease and operate its properties and carry on its business as now conducted. The Company has heretofore made available to Purchaser true and correct copies of the Company's Certificate articles of Incorporation incorporation and Bybylaws previously made available to Purchaser are true, correct and complete. As used in this Agreement, the term "Company Material Adverse Effect" means any change, effect, event or condition that has had or could reasonably be expected to (i) have a material adverse effect on the business, results of operations or financial condition of the Company and its Subsidiaries, taken as a whole, or (ii) prevent or materially delay the Company's ability to consummate the transactions contemplated hereby; provided, however, that without waiving any representation, warranty or covenant in no event will any of the following constitute a Company Material Adverse Effect: (a) a change in the trading prices of any of the Company's securities, in and of itself; (b) effects, changes, events, circumstances or conditions generally affecting the long-Laws term care or real estate finance industries or arising from changes in general business or economic conditions, provided that the effect thereof is not materially disproportionate on the Company and its Subsidiaries than the effect on similarly situated companies; (c) effects, changes, events, circumstances or conditions directly attributable to out-of-pocket fees and expenses (including without limitation legal, accounting, investigatory, investment banking and other fees and expenses) incurred in connection with the transactions contemplated by the Transaction Documents; (d) any effects, changes, events, circumstances or conditions resulting from the announcement or pendency of any of the transactions provided for in the Transaction Documents; (e) any effects, changes, events, circumstances or conditions resulting from compliance by Purchaser or the Company with the terms of, or the taking of any actions specifically required to be taken in, the Transaction Documents; (f) the effect of the financial condition of any operator of any of the Company Properties described in Section 2.1 of the Company Disclosure Letter; (g) the effect of any operator of any of the Company Properties in bankruptcy proceedings as currently of the date hereof rejecting leases to Company Properties or Material Contacts; and (h) the effect of any matters specifically disclosed in the Company Disclosure Letter except with respect to items 1 and 9 of Section 2.10 of the Company Disclosure Letter to the extent the ultimate liability associated therewith shall exceed $15.0 million in the aggregate after application of any available insurance proceeds and reimbursement available to the Company as a result of rights of contribution, subrogation and other similar sources of reimbursement for such liabilities and provided, however, that any change, effect, event or condition arising after the date hereof in any of the matters specifically disclosed in the Company Disclosure Letter shall not be excluded from the definition of Company Material Adverse Effect for purposes of Section 5.3. As used in this Agreement, the term "Subsidiary" (i) when used with respect to any party, means any corporation or other organization, whether incorporated or unincorporated, of which such party directly or indirectly owns or controls more than 50% of the securities or other interests having by their terms ordinary voting power to elect a majority of the board of directors or others performing similar functions and (ii) when used with respect to the Company, shall also include each of the following entities: (1) Bayside Street II, Inc., a Delaware corporation, (2) Bayside Alabama Healthcare Second, Inc., an Alabama corporation, (3) Bayside Arizona Healthcare Second, Inc., an Arizona corporation, and (4) Bayside Colorado Healthcare Second, Inc., a Colorado corporation.

Existence; Good Standing; Corporate Authority. Each of the Company and each of its Subsidiaries (a) Purchaser is (i) a corporation duly organizedorganized and is validly existing and in good standing under the laws of the State of Delaware, (b) each Subsidiary of Purchaser is a corporation duly organized and is validly existing and in good standing under the laws of its jurisdiction of incorporation organization, and (iic) each of Purchaser and its Subsidiaries is duly licensed or qualified to do business as a foreign corporation and is in good standing under the laws of any each other state of the United States or the laws of any foreign jurisdiction, if applicable, in which the character of the properties owned owned, licensed or leased by it or in which the transaction of its business makes such qualification necessary, except except, in the case of the foregoing clauses (b) and (c), where the failure to be so licensed or qualified or to be in good standing standing, has not had and would not havereasonably be expected to have a Purchaser Material Adverse Effect. For purposes of this Agreement, “Purchaser Material Adverse Effect” means any change, circumstance, development, occurrence, event, fact or effect (each, a “Purchaser Effect”) that, when considered either individually or in the aggregatetogether with all other Purchaser Effects, a material is or is reasonably likely to be materially adverse effect on to (i) the business, -11- 13 operationsproperties, revenuesassets, assets liabilities, consolidated results of operations or condition (financial condition or otherwise) of the Company Purchaser and its Subsidiaries Subsidiaries, taken as a whole or (ii) the ability of Purchaser or Merger Sub to consummate the Company transactions contemplated by this Agreement; provided, that any such Purchaser Effect resulting or arising from or relating to any of the following matters shall not be considered when determining whether a Purchaser Material Adverse Effect has occurred or would reasonably be expected to occur: (i) any conditions, developments or changes affecting the industries in which Purchaser and its Subsidiaries to conduct their business after operate; (ii) any conditions affecting the Closing substantially consistent United States general economy or the general economy in any geographic area in which Purchaser or its Subsidiaries operate or developments or changes therein; (iii) political conditions, including acts of war (whether or not declared), armed hostilities and terrorism, or developments or changes therein; (iv) any conditions resulting from natural disasters; (v) compliance by Purchaser and its Subsidiaries with the manner conducted covenants contained in this Agreement (provided that this clause shall not apply to Purchaser Effects resulting from compliance with Section 7.1(c)); (vi) the past (a "Material Adverse Effect") failure of the financial or operating performance of Purchaser or its Subsidiaries to meet internal projections or budgets for any period in and of itself (it being understood that any fact or development giving rise to or contributing to such failure may be the cause of a Purchaser Material Adverse Effect if not otherwise excluded pursuant to this definition); (vii) any action taken or omitted to be taken by or at the written request or with the written consent of the Company; (viii) any announcement of this Agreement or the transactions contemplated hereby, in each case, solely to the extent due to such announcement; (ix) changes in any Laws or accounting principles; or (x) any Purchaser Effects arising out of or resulting from any legal claims or other proceedings made by any of Purchaser’s stockholders (on their own behalf or on behalf of Purchaser) arising out of or related to this Agreement or the Merger; provided, however, that Purchaser Effects set forth in clauses (i), (ii), (iii), (iv) any adverse effect that is caused by conditions affecting the economy or securities markets generally shall not and (ix) above may be taken into account in determining whether there has been or is a Purchaser Material Adverse Effect (ii) any adverse effect that is caused by conditions affecting if and only to the primary industry extent such Purchaser Effects have a disproportionate impact on Purchaser and its Subsidiaries, taken as a whole, relative to the other participants in the businesses in which the Company currently competes shall not be taken Purchaser operates (after taking into account in determining whether there has been a Material Adverse Effect (provided that the size of Purchaser and its Subsidiaries relative to such effect does not affect the Company in a disproportionate manner) and (iii) any adverse effect resulting from the Offer, the Merger or any of the transactions contemplated hereby or the announcement thereof (including those resulting from litigation brought or threatened against the Company or any member of its Board of Directors in respect thereof) shall not be taken into account in determining whether there has been a Material Adverse Effectother participants). Each of the Company Purchaser and each of its Subsidiaries has all requisite corporate power and authority to own or own, operate, license and lease and operate its properties and carry on its business as now conducted, except where the failure to have such power and authority would not reasonably be expected to have a Purchaser Material Adverse Effect. The Company Purchaser has heretofore made available to Purchaser the Company true and correct copies of the Company's Certificate certificate of Incorporation incorporation and By-Laws bylaws or other governing instruments of Purchaser and Merger Sub as currently in effect. The corporate records and minute books of Purchaser and Merger Sub reflect all material actions taken and authorizations made at meetings of such companies’ board of directors or any committees thereof and at any stockholders’ meetings thereof.