Common use of Certain Presumptions Clause in Contracts

Certain Presumptions. For the purposes of this Section 12.2, but without creating any implication that any of the following is true, it shall be presumed that: (i) the acquisition by the Purchaser of shares of Xxxxxx Common Stock pursuant to this Agreement and the acquisition by the Purchaser of shares of Surviving Corporation Common Stock pursuant to the Merger, as applicable, is an acquisition of stock that is part of a plan or series of related transactions that includes the Split-Off; (ii) except as provided in clause (iii) below, no issuance of GM Class H Common Stock that occurred on or prior to March 20, 2003 is part of a plan or series of related transactions that includes the Split-Off; (iii) bunless the IRS has issued a Subsequent Ruling to the contrary, the contribution by GM of 149,200,000 shares of GM Class H Common Stock to the GM Employee Benefit Plans that occurred on March 12, 2003, is an acquisition of stock that is part of a plan or series of related transactions that includes the Split-Off; (iv) any acquisition of GM Class H Common Stock (prior to the Split-Off) or Xxxxxx Capital Stock (after the Split-Off) by a retirement plan maintained by GM or any GM Affiliate or by Xxxxxx or any Xxxxxx Affiliate for their respective employees that is qualified under Section 401(a) or 403(a) of the Code other than, unless the IRS rules otherwise in the Ruling or has issued a Subsequent Ruling to the contrary, (A) the contribution of GM Class H Common Stock described in clause (iii) above, (B) a contribution of Xxxxxx Capital Stock to such a plan by Xxxxxx or a Xxxxxx Affiliate which is not pursuant to the provisions of the mandatory matching contribution contained in the Xxxxxx Section 401(k) plan as in existence on the date hereof and (C) acquisitions of GM Class H Common Stock or Xxxxxx Capital Stock by such a plan which are required or directed by Xxxxxx, is not an acquisition of stock that is part of a plan or series or related transactions that includes the Split-Off; and (v) any acquisition of GM Class H Common Stock (prior to the Split-Off) or Xxxxxx Capital Stock (after the Split-Off) by an employee, director or independent contractor of Xxxxxx or any Xxxxxx Affiliate pursuant to the exercise of a stock option, stock right or a grant of stock or otherwise in connection with the performance of services (but only if such compensation is not excessive by reference to the services performed) other than an employee, director or independent contractor who is (or after the acquisition would be) a five percent (5%) shareholder of Xxxxxx or is part of a group joined in a coordinated effort to acquire five percent (5%) or more of the Xxxxxx Capital Stock is not an acquisition of stock that is part of a plan or series or related transactions that includes the Split-Off. Presumptions (iv) and (v) above can be withdrawn or modified on a prospective basis by GM based on a Change in Tax Law that adversely affects the applicability of the presumption; provided that future calculations of stock which may be issued by Xxxxxx pursuant to clause (h) below shall take into account, where necessary, withdrawn or modified presumptions.

Certain Presumptions. For the purposes of this Section 12.2, but without creating any implication that any of the following is true6.2, it shall be presumed that: (i) the acquisition by the Purchaser of shares of Xxxxxx Common Stock pursuant to this Agreement and the acquisition by the Purchaser of shares of Surviving Corporation Common Stock pursuant to the Merger, as applicable, is an acquisition of stock that is part of a plan or series of related transactions that includes the Split-Off; (ii) except as provided in clause (iii) below, no issuance of GM Class H Common Stock that occurred on or prior to March 20May 1, 2003 2001 is part of a plan or series of related transactions Section 355(e) Plan that includes any Proposed Acquisition Transaction. For the Split-Off; purposes of this Section 6.2, (iiii) bunless unless the IRS has issued a Subsequent Ruling ruling to GM to the contraryeffect that no disposition by the holder of the GM Series H Preference Stock (or any successor securities, including the Xxxxxx Preference Stock, and including securities received upon conversion or exchange of the GM Series H Preference Stock or any successor securities) of any such stock or securities will be treated as part of a Section 355(e) Plan that includes the GM Transactions and the Merger, (an "AOL Section 355(e) Ruling"), it shall be conclusively presumed that the holder of the GM Series H Preference Stock (or any successor securities, including the Xxxxxx Preference Stock, and including securities received upon conversion or exchange of the GM Series H Preference Stock or any successor securities) will dispose of all such stock and securities in a transaction (such transaction, the contribution by "Assumed AOL Sale") that is part of a Section 355(e) Plan that includes the GM Transactions and the Merger; (ii) unless the IRS has issued a ruling to the contrary based on representations reasonably acceptable to GM, it shall be conclusively presumed that each security or instrument that is outstanding immediately prior to the Merger Effective Time and convertible into, or exchangeable or exercisable for, capital stock of 149,200,000 EchoStar (other than stock options issued to employees of EchoStar or its Subsidiaries in connection with the performance of services) will be converted, exchanged or exercised after the Merger Effective Time into or for the largest number of shares of capital stock of Xxxxxx that may be issued thereunder, in each case in a transaction (such transactions, collectively, the "Conversion Issuances") that is part of a Section 355(e) Plan that includes the GM Transactions and the Merger; and (iii) it shall be conclusively presumed that any shares of GM Class H Common Stock issued or Xxxxxx Class C Common Stock distributed (or that may be distributed) by GM pursuant to any GM Debt/Equity Exchange was or will be issued or distributed, as the GM Employee Benefit Plans that occurred on March 12case may be, 2003in a transaction (such transactions, is an acquisition of stock collectively, the "Debt/Equity Issuances") that is part of a plan or series of related transactions Section 355(e) Plan that includes the Split-Off; (iv) any acquisition of GM Class H Common Stock (prior to Transactions and the Split-Off) or Xxxxxx Capital Stock (after the Split-Off) by a retirement plan maintained by GM or any GM Affiliate or by Xxxxxx or any Xxxxxx Affiliate for their respective employees that is qualified under Section 401(a) or 403(a) of the Code other than, unless the IRS rules otherwise in the Ruling or has issued a Subsequent Ruling to the contrary, (A) the contribution of GM Class H Common Stock described in clause (iii) above, (B) a contribution of Xxxxxx Capital Stock to such a plan by Xxxxxx or a Xxxxxx Affiliate which is not pursuant to the provisions of the mandatory matching contribution contained in the Xxxxxx Section 401(k) plan as in existence on the date hereof and (C) acquisitions of GM Class H Common Stock or Xxxxxx Capital Stock by such a plan which are required or directed by Xxxxxx, is not an acquisition of stock that is part of a plan or series or related transactions that includes the Split-Off; and (v) any acquisition of GM Class H Common Stock (prior to the Split-Off) or Xxxxxx Capital Stock (after the Split-Off) by an employee, director or independent contractor of Xxxxxx or any Xxxxxx Affiliate pursuant to the exercise of a stock option, stock right or a grant of stock or otherwise in connection with the performance of services (but only if such compensation is not excessive by reference to the services performed) other than an employee, director or independent contractor who is (or after the acquisition would be) a five percent (5%) shareholder of Xxxxxx or is part of a group joined in a coordinated effort to acquire five percent (5%) or more of the Xxxxxx Capital Stock is not an acquisition of stock that is part of a plan or series or related transactions that includes the Split-Off. Presumptions (iv) and (v) above can be withdrawn or modified on a prospective basis by GM based on a Change in Tax Law that adversely affects the applicability of the presumption; provided that future calculations of stock which may be issued by Xxxxxx pursuant to clause (h) below shall take into account, where necessary, withdrawn or modified presumptionsMerger.

Certain Presumptions. For the purposes of this Section 12.2, but without creating any implication that any of the following is true6.2, it shall be presumed that: (i) the acquisition by the Purchaser of shares of Xxxxxx Common Stock pursuant to this Agreement and the acquisition by the Purchaser of shares of Surviving Corporation Common Stock pursuant to the Merger, as applicable, is an acquisition of stock that is part of a plan or series of related transactions that includes the Split-Off; (ii) except as provided in clause (iii) below, no issuance of GM Class H Common Stock that occurred on or prior to March 20May 1, 2003 2001 is part of a plan or series of related transactions Section 355(e) Plan that includes any Proposed Acquisition Transaction. For the Split-Off; purposes of this Section 6.2, (iiii) bunless unless the IRS has issued a Subsequent Ruling ruling to GM to the contraryeffect that no disposition by the holder of the GM Series H Preference Stock (or any successor securities, including the Hughes Preference Stock, and including securities received upon xxxxxrsion or exchange of the GM Series H Preference Stock or any successor securities) of any such stock or securities will be treated as part of a Section 355(e) Plan that includes the GM Transactions and the Merger, (an "AOL Section 355(e) Ruling"), it shall be conclusively presumed that the holder of the GM Series H Preference Stock (or any successor securities, including the Hughes Preference Stock, and including securities received upon cxxxxxxion or exchange of the GM Series H Preference Stock or any successor securities) will dispose of all such stock and securities in a transaction (such transaction, the contribution by "Assumed AOL Sale") that is part of a Section 355(e) Plan that includes the GM Transactions and the Merger; (ii) unless the IRS has issued a ruling to the contrary based on representations reasonably acceptable to GM, it shall be conclusively presumed that each security or instrument that is outstanding immediately prior to the Merger Effective Time and convertible into, or exchangeable or exercisable for, capital stock of 149,200,000 EchoStar (other than stock options issued to employees of EchoStar or its Subsidiaries in connection with the performance of services) will be converted, exchanged or exercised after the Merger Effective Time into or for the largest number of shares of capital stock of Hughes that may be issued thereunder, in each case in a transacxxxx (such transactions, collectively, the "Conversion Issuances") that is part of a Section 355(e) Plan that includes the GM Transactions and the Merger; and (iii) it shall be conclusively presumed that any shares of GM Class H Common Stock issued or Hughes Class C Common Stock distributed (or that may be distribuxxx) xy GM pursuant to any GM Debt/Equity Exchange was or will be issued or distributed, as the GM Employee Benefit Plans that occurred on March 12case may be, 2003in a transaction (such transactions, is an acquisition of stock collectively, the "Debt/Equity Issuances") that is part of a plan or series of related transactions Section 355(e) Plan that includes the Split-Off; (iv) any acquisition of GM Class H Common Stock (prior to Transactions and the Split-Off) or Xxxxxx Capital Stock (after the Split-Off) by a retirement plan maintained by GM or any GM Affiliate or by Xxxxxx or any Xxxxxx Affiliate for their respective employees that is qualified under Section 401(a) or 403(a) of the Code other than, unless the IRS rules otherwise in the Ruling or has issued a Subsequent Ruling to the contrary, (A) the contribution of GM Class H Common Stock described in clause (iii) above, (B) a contribution of Xxxxxx Capital Stock to such a plan by Xxxxxx or a Xxxxxx Affiliate which is not pursuant to the provisions of the mandatory matching contribution contained in the Xxxxxx Section 401(k) plan as in existence on the date hereof and (C) acquisitions of GM Class H Common Stock or Xxxxxx Capital Stock by such a plan which are required or directed by Xxxxxx, is not an acquisition of stock that is part of a plan or series or related transactions that includes the Split-Off; and (v) any acquisition of GM Class H Common Stock (prior to the Split-Off) or Xxxxxx Capital Stock (after the Split-Off) by an employee, director or independent contractor of Xxxxxx or any Xxxxxx Affiliate pursuant to the exercise of a stock option, stock right or a grant of stock or otherwise in connection with the performance of services (but only if such compensation is not excessive by reference to the services performed) other than an employee, director or independent contractor who is (or after the acquisition would be) a five percent (5%) shareholder of Xxxxxx or is part of a group joined in a coordinated effort to acquire five percent (5%) or more of the Xxxxxx Capital Stock is not an acquisition of stock that is part of a plan or series or related transactions that includes the Split-Off. Presumptions (iv) and (v) above can be withdrawn or modified on a prospective basis by GM based on a Change in Tax Law that adversely affects the applicability of the presumption; provided that future calculations of stock which may be issued by Xxxxxx pursuant to clause (h) below shall take into account, where necessary, withdrawn or modified presumptionsMerger.