Netgear 2012 Annual Report Download - page 155

(iii)
changes in, or announcements of changes in, applicable Law or accounting rules or principles, including
changes in GAAP, provided
such changes or announcements do not have a materially disproportionate effect on the AirCard
Business relative to other businesses in the industry in which the AirCard Business operates;
(iv) acts of God, acts of war, terrorism or natural disasters, provided
such events do not have a materially
disproportionate effect on the AirCard Business relative to other businesses in the industry in which the AirCard Business
operates;
(v) the announcement or pendency of the Transactions contemplated herein;
(vi) the failure to take any action that is expressly prohibited by Section 7.2 ;
(vii) changes in the price and/or trading volume of Canadian Seller’s common shares, provided
that such
exclusion shall apply only to such change in and of itself, and not to any underlying cause of such change; and
(viii) the failure of Canadian Seller to meet published estimates, expectations or projections, provided
that
such exclusion shall apply to such failure in and of itself, and not to any underlying cause of such failure.
(n) “ Business Software ”
shall mean any and all versions of any Software that is (i) developed for the use,
programming, verification, testing, support or operation of AirCard Products, or (ii) distributed together with an AirCard Product, either
preloaded on such AirCard Product or distributed together with such AirCard Product on any type of storage media, or otherwise made
available for download by Sellers or their Subsidiaries for use on or with AirCard Products.
(o) “ Buyer ”
shall mean US Buyer, IP Buyer, International Buyer, Canadian Buyer and/or Australian Buyer, as the
context may require.
(p) “ Buyers’ Material Adverse Effect ”
shall mean any change, event, circumstance or effect that, individually or in
the aggregate with all other changes, events, circumstances and effects, is or would reasonably be expected to be material and adverse
to Buyers’
ability to consummate the Transactions and to fulfill and perform their covenants and obligations under this Agreement and
the other Transaction Agreements.
(q) “ Carve-Out Financial Statements ”
shall mean the (i) audited financial statements of the AirCard Business
(accompanied by an unqualified opinion of an internationally recognized independent accounting firm) and, if applicable, (ii) unaudited
interim period financial statements of the AirCard Business (which financial statements shall have been reviewed by an internationally
recognized independent accounting firm), in each case as of the dates and for the periods specified in Rule 3-05(b) of Regulation S-
X,
that US Buyer is required to file with the U.S. Securities and Exchange Commission (the “ SEC ”)
pursuant to Item 2.01 and Item 9.01
of Form 8-K (or, in lieu thereof, in an Annual Report on Form 10-K or Quarterly Report on Form 10-
Q if such annual report or
quarterly report is required to be filed prior to the date the Form 8-
K reporting the Transactions is required to be filed) in connection
with the completion of the Transactions contemplated by this Agreement.
(r) “ COBRA ”
shall mean the requirements of Part 6 of Subtitle B of Title I of ERISA and Section 4980B of the
Code and of any similar Law.
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