EXHIBIT 8.1
[LETTERHEAD]
October 6, 1995
ICOT Corporation
0000 Xxxxxx Xxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Merger Pursuant to the Amended and Restated Agreement and
Plan of Reorganization and Merger, dated as of August 3, 1995,
as amended, by and among ICOT Corporation, a Delaware
corporation, IA Acquisition Corporation, a California
corporation, and Amati Communications Corporation, a
California corporation
--------------------------------------------------------------
Ladies and Gentlemen:
This opinion is being delivered to you in connection
with the filing of a registration statement on Form S-4 of a
joint proxy statement/prospectus and pursuant to Section 6.7 of
the Amended and Restated Agreement and Plan of Reorganization and
Merger (the "Agreement"), dated as of August 3, 1995, by and
among ICOT Corporation, a Delaware corporation ("ICOT"), IA
Acquisition Corporation, a California corporation ("Sub"), and
Amati Communications Corporation, a California corporation
("Amati"), pursuant to which Amati will merge with and into Sub,
a wholly owned subsidiary of ICOT (the "Merger").
Except as otherwise provided, capitalized terms
referred to herein have the meanings set forth in the Agreement.
All section references, unless otherwise indicated, are to the
Internal Revenue Code of 1986, as amended (the "Code").
We have acted as legal counsel to ICOT in connection
with the Merger. As such, and for the purpose of rendering this
opinion, we have examined (or will examine on or prior to the
Effective Time) and are relying (or will rely) upon (without any
independent investigation or review thereof), the truth and
accuracy, at all relevant times, of the statements, covenants,
representations, and warranties contained in the following
documents (including all schedules and exhibits thereto):
ICOT Corporation
October 6, 1995 Page 2
1. The Agreement;
2. Amendment No. 1 to the Registration Statement on
Form S-4 (File No. 33-62023) filed by ICOT on September 6, 1995,
and Amendment No. 2 to such Registration Statement filed by ICOT
on October 6, 1995, for the purpose of registering the ICOT
Common Stock to be used in connection with the Merger under the
Securities Act of 1933, as amended (collectively, the
"Registration Statement");
3. Representations made by ICOT and Sub in a letter
to us for our use in rendering this opinion;
4. Representations made by Xxxxx to us for our use in
rendering this opinion;
5. Representations made to us by certain shareholders
of Amati for our use in rendering this opinion; and
6. Such other instruments and documents related to
the formation, organization and operation of ICOT, Amati, and Sub
or to the consummation of the Merger and the transactions
contemplated thereby as we have deemed necessary or appropriate.
In connection with rendering this opinion, we have
assumed or obtained representations (and are relying thereon,
without any independent investigation or review thereof) that:
1. Original documents (including signatures) are
authentic, documents submitted to us as copies conform to the
original documents, and there has been (or will be by the
Effective Time) due execution and delivery of all documents whose
due execution and delivery are prerequisites to the effectiveness
thereof;
2. The Merger will be effective under the laws of the
State of California;
3. The shareholders of Amati do not, and will not on
or before the Effective Time, have an existing plan or intent to
dispose of an amount of ICOT Common Stock to be received in the
Merger (or to dispose of Amati capital stock in anticipation of
the Merger) such that the shareholders of Amati will not receive
and retain a meaningful continuing equity ownership in ICOT that
is sufficient to satisfy the continuity of interest requirement
as specified in Treasury Regulations Section 1.368-1(b) and as
ICOT Corporation
October 6, 1995 Page 3
interpreted in certain Internal Revenue Service rulings and
federal judicial decisions;
4. After the Merger, Sub will hold "substantially
all" of Amati's properties within the meaning of Section
368(a)(2)(D) of the Code and the regulations promulgated
thereunder;
5. To the extent any expenses relating to the Merger
(or the "plan of reorganization" within the meaning of Treasury
Regulations Section 1.368-1(c) with respect to the Merger) are
funded directly or indirectly by a party other than the incurring
party, such expenses will be within the guidelines established in
Revenue Ruling 73-54, 1973-1 C.B. 187; and any expenses paid on
behalf of Amati shareholders will not exceed one percent of the
total consideration that will be issued in the Merger to Amati
shareholders in exchange for their shares of Xxxxx xxxxx;
6. No Amati shareholder guaranteed any Amati
indebtedness outstanding during the period ending at the
Effective Time and beginning with the commencement of
negotiations (whether formal or informal) regarding the Merger,
and at all relevant times, including as of the Effective Time,
(i) no outstanding indebtedness of Amati, ICOT, or Sub has or
will represent equity for tax purposes; (ii) no outstanding
equity of Amati, ICOT, or Sub has or will represent indebtedness
for tax purposes; and (iii) no outstanding security, instrument,
agreement, or arrangement that provides for, contains or
represents either a right to acquire Amati stock or to share in
the appreciation thereof constitutes or will constitute "stock"
for purposes of Section 368(c) of the Code;
7. An opinion of counsel to Xxxxx, Gray Xxxx Xxxx &
Xxxxxxxxxxx, which opinion is substantially similar to this
opinion, has been delivered to Amati pursuant to Section 7.6 of
the Agreement and has not been withdrawn; and
8. Any representation or statement made "to the
knowledge of" or otherwise similarly qualified is correct without
such qualification. As to all matters in which a signatory has
represented that such signatory either is not a party to, does
not have, or is not aware of, any plan, intention, understanding,
or agreement, there is in fact no such plan, intention,
understanding, or agreement.
ICOT Corporation
October 6, 1995 Page 4
Based on our examination of the foregoing items and
subject to the assumptions, exceptions, limitations, and
qualifications set forth herein, we are of the opinion that, for
federal income tax purposes, the Merger will be a
"reorganization" as defined in Section 368(a) of the Code.
In addition to the assumptions set forth above, this
opinion is subject to the exceptions, limitations and
qualifications set forth below.
1. This opinion addresses only the classification of
the Merger as a reorganization under Section 368(a) of the Code
and does not address any other federal, state, local, or foreign
tax consequences that may result from the Merger or any other
transaction (including any transaction undertaken in connection
with the Merger).
2. No opinion is expressed as to (i) any transaction
other than the Merger as described in the Agreement (including
without limitation any transaction in which the Amati capital
stock that was exchanged in the Merger was acquired by the
exchanging shareholder) or (ii) any transaction whatsoever
(including the Merger) if all the transactions described in the
Agreement are not consummated in accordance with the terms of the
Agreement and without waiver or breach of any material provision
thereof, or if any of the representations, warranties,
statements, and assumptions upon which we have relied are not
true and accurate at all relevant times. In the event any one of
the statements, representations, warranties, or assumptions upon
which we have relied to issue this opinion is incorrect, our
opinion might be adversely affected and may not be relied upon.
3. This opinion letter represents and is based upon
our best judgment regarding the application of federal income tax
laws arising under the Code, existing judicial decisions,
administrative regulations, and published rulings and procedures.
Our opinion is not binding upon the Internal Revenue Service or
the courts, and there is no assurance that the Internal Revenue
Service will not successfully assert a contrary position.
Furthermore, no assurance can be given that future legislative,
judicial, or administrative changes, on either a prospective or
retroactive basis, would not adversely affect the accuracy of the
conclusions stated herein. Nevertheless, we undertake no
responsibility to advise you of any new developments in the
application or interpretation of the federal income tax laws.
ICOT Corporation
October 6, 1995 Page 5
4. This opinion is intended solely for the benefit of
you and your shareholders; it may not be relied upon for any
other purpose or by any other person or entity, and may not be
made available to any other person or entity without our prior
written consent. We hereby consent, however, to the use of this
opinion as an exhibit to the Registration Statement and further
consent to the use of our name whenever appearing in the
Registration Statement, including the Prospectus/Proxy Statement
constituting a part thereof, and any amendments thereto.
Very truly yours,
Xxxxxx Xxxxxx Xxxxx & XxXxxxxxx
