Common use of Conditions to Obligations of Acquiror to Effect the Merger Clause in Contracts

Conditions to Obligations of Acquiror to Effect the Merger. Unless waived in writing by Acquiror, the obligations of Acquiror and Acquisition Sub to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the additional following conditions: (a) (i) Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date, (ii) the representations and warranties of Company contained in this Agreement, without regard to any materiality or Material Adverse Effect qualifier contained therein, shall be true and correct on and as of the date made and on and as of the Closing Date as if made at and as of the Closing Date (except for any representations and warranties made as of a specified date, which shall be true and correct as of the specified date), except where the failure of such representations and warranties to be true and correct would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Company and would not materially impair Company’s ability to perform its obligations under this Agreement, and (iii) Acquiror shall have received a certificate of the President or of a Vice President of Company to that effect; (b) Acquiror shall have received from King & Spalding LLP (or other counsel reasonably acceptable to Acquiror) an opinion, on the basis of representations and assumptions set forth in such opinion, that the Merger will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code and such opinion shall not have been withdrawn as of the Effective Time; provided, however, that if King & Spalding LLP does not render such opinion or withdraws or modifies such opinion, this condition shall nonetheless be deemed satisfied if Xxxxx & Xxxxxxx L.L.P renders such opinion to Acquiror, which opinion has not been withdrawn. In rendering its opinion, counsel shall be entitled to rely upon representations of officers of Acquiror and Company that are provided pursuant to Section 6.15(b) of this Agreement; (c) There shall not have occurred since the date of this Agreement any change, effect, circumstance or event, which together with any other changes, effects, circumstances or events, has had or is reasonably likely to have a Material Adverse Effect with respect to Company; (d) The Dissenting Shares shall not constitute more than ten percent (10%) of the issued and outstanding Company Common Stock; (e) The shares of Company Preferred Stock shall have been redeemed in accordance with the provisions of Section 6.14; and (f) Company shall have obtained the Requisite Consent with respect to the Consent Solicitation and the Trustee shall have executed the Amendments in connection therewith, and such Amendments shall have or shall become effective in accordance with Section 6.21(c).

Conditions to Obligations of Acquiror to Effect the Merger. Unless waived in writing by Acquiror, the obligations The obligation of Acquiror and Acquisition Merger Sub to effect the Merger shall be are subject to the fulfillment at on or prior to before the Closing Date of each of the additional following conditions: (a) (i) Company each Target Stockholder shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to entered into the Closing Date, Rights Agreement; (iib) the representations and warranties of Company Target contained in this Agreement, without regard to any materiality or Material Adverse Effect qualifier Article III and the Target Stockholders contained therein, in Article IV shall be true and correct on and as of the date Closing with the same effect as though such representations and warranties had been made and on and as of the date of Closing Date as if made at and as of the Closing Date (except for any representations and warranties made as of a specified date, which shall be true and correct as of the specified date), except where the failure of such representations and warranties to be true and correct would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Company and would not materially impair Company’s ability to perform its obligations under this Agreement, and (iii) Acquiror shall have received a certificate of the President or of a Vice President of Company to that effect; (b) Acquiror shall have received from King & Spalding LLP (or other counsel reasonably acceptable to Acquiror) an opinion, on the basis of representations and assumptions set forth in such opinion, that the Merger will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code and such opinion shall not have been withdrawn as of the Effective Time; provided, however, that if King & Spalding LLP does not render such opinion or withdraws or modifies such opinion, this condition shall nonetheless be deemed satisfied if Xxxxx & Xxxxxxx L.L.P renders such opinion to Acquiror, which opinion has not been withdrawn. In rendering its opinion, counsel shall be entitled to rely upon representations of officers of Acquiror and Company that are provided pursuant to Section 6.15(b) of this Agreement; (c) There Target and the Target Stockholders shall not have occurred since the date of performed and complied in all material respects with all agreements, obligations and conditions contained in this Agreement any change, effect, circumstance that are required to be performed or event, which together complied with any other changes, effects, circumstances by it on or events, has had or is reasonably likely to have a Material Adverse Effect with respect to Companybefore the Closing; (d) The Dissenting Shares the President of Telcom I and Telcom II shall not constitute more than ten percent have delivered to Acquiror at the Closing a certificate (10%the "Compliance Certificate") of stating that the issued conditions specified in Sections 8.3(b) and outstanding Company Common Stock(c) have been fulfilled; (e) The shares Acquiror shall have concluded, in its reasonable discretion, that the consummation of Company Preferred the Merger will not be a taxable event for Acquiror or Merger Sub; (f) Acquiror shall have concluded that it will be able to file the Mandatory S-1 covering the resale of Acquiror Common Stock to be issued in the Merger within three business days after the Closing Date; (g) Telcom I and Telcom II shall have taken all actions necessary to comply with the requirements of the MSV Stockholders' Agreement, including Sections 8.2(a) and 8.2(b) thereof, and the Parent Transfer/Drag Along Agreement; (h) there shall have been redeemed no material adverse change in accordance with the provisions business, assets or financial condition of Section 6.14Telcom I, Telcom II, MSV, MSV GP or TerreStar; and (fi) Company shall have obtained such other closing conditions as may be reasonably requested by Motient, including, without limitation, the Requisite Consent with respect to delivery of original stock certificates for the Consent Solicitation outstanding shares of Telcom I and Telcom II, certified board and stockholder resolutions approving the Trustee shall have executed the Amendments in connection therewith, transaction and such Amendments shall have or shall become effective in accordance with Section 6.21(c)good standing certificates.

Conditions to Obligations of Acquiror to Effect the Merger. Unless waived in writing by Acquiror, the The obligations of Acquiror and Acquisition Sub to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional following conditions: (a) (i) Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date, (ii) each of the representations and warranties of the Company contained in this Agreement, without regard to any materiality or Material Adverse Effect qualifier contained therein, shall be true and correct on and as of the date made and on and as of the Closing Date as if made at and as of the Closing Date (except for any representations and warranties made as of a specified date, which Agreement shall be true and correct as of the specified date)Effective Time as though made on and as of the Effective, Time, except (i) for changes specifically permitted or required by this Agreement, (ii) that those representations and warranties which address matters only as of a particular date (other than the date of this Agreement) shall remain true and correct as of such particular date, and (iii) where the failure of such representations and warranties to be so true and correct would not reasonably be expected to havenot, individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect on Effect; (b) the Company shall have performed or complied in all material respects with all agreements and would not materially impair Company’s ability covenants required by this Agreement to perform its obligations under this Agreement, and be performed or complied with by it at or prior to the Effective Time; (iiic) Acquiror shall have received a certificate executed on behalf of the President Company by the Chief Executive Officer or Chief Financial Officer of a Vice President of the Company to that effectthe effect set forth in clauses (a) and (b) of this Section 7.3; (bd) Acquiror shall have received from King an opinion of Xxxxxx & Spalding LLP (or other counsel Xxxxxxx, dated as of the Closing Date, in form and substance reasonably acceptable satisfactory to Acquiror) an opinion, substantially to the effect that, on the basis of facts, representations and assumptions set forth in such opinionopinion that are consistent with the state of facts existing as of such time, that the Merger will be treated for federal income tax purposes as purposes, the Merger will constitute a reorganization "reorganization" within the meaning of Section 368(a) of the Code and such opinion shall not have been withdrawn as of the Effective Time; provided, however, that if King & Spalding LLP does not render such opinion or withdraws or modifies Code. In rendering such opinion, this condition shall nonetheless be deemed satisfied if Xxxxx Xxxxxx & Xxxxxxx L.L.P renders such opinion to Acquiror, which opinion has not been withdrawn. In rendering its opinion, counsel shall be entitled to may receive and rely upon representations including those contained in this Agreement or in certificates of officers of Acquiror and Company that are provided pursuant to Section 6.15(b) of this Agreement; (c) There shall not have occurred since the date of this Agreement any change, effect, circumstance parties or event, which together with any other changes, effects, circumstances or events, has had or is reasonably likely to have a Material Adverse Effect with respect to Company; (d) The Dissenting Shares shall not constitute more than ten percent (10%) of the issued and outstanding Company Common Stockothers; (e) all consents, appeals, releases or authorizations from, and all filings and registrations ("Consents") to or with, any Person, including but not -------- limited to any Governmental Entity set forth in Section 7.3(e) of the Acquiror Disclosure Schedule shall have been made or obtained; (f) Acquiror shall have received an opinion of Xxxxxx, Xxxx & Xxxx, in form and substance reasonably satisfactory to Acquiror, substantially to the effect that, on the basis of facts, representations and assumptions set forth in such opinion that are consistent with the state of facts existing as of such time, no approval of the holders of the Exchangeable Shares is required by the Old Support Agreement, the Old Voting and Exchange Trust Agreement or the provisions attaching to the Exchangeable Shares or the Business Corporations Act (Ontario) (being the statute by which Canadian Sub is governed) in order for the Company to effect the Merger or for Acquiror to enter into the Support Agreement Amendment or the Voting and Exchange Trust Supplement or for either to them to perform their other obligations hereunder and that, on and after the Effective Time, the Exchangeable Shares will be, by their terms, exchangeable for Acquiror Common Shares rather than Company Common Shares without any approval of the holders of the Exchangeable Shares; and (g) No holder of Company Special Voting Stock shall have exercised and not withdrawn any appraisal rights under the DGCL. The holders of no more than 12,500 shares of Company Preferred Stock shall have been redeemed in accordance with exercised and not withdrawn any appraisal rights under the provisions of Section 6.14; and (f) Company shall have obtained the Requisite Consent with respect to the Consent Solicitation and the Trustee shall have executed the Amendments in connection therewith, and such Amendments shall have or shall become effective in accordance with Section 6.21(c)DGCL.