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Exhibit 8.2
[XXXXXXXX & XXXXX LETTERHEAD]
October 13, 1999
Westinghouse Air Brake Company
0000 Xxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Ladies and Gentlemen:
We refer to the Amended and Restated Agreement and Plan of Merger, as
amended (the "Agreement"), dated as of September 26, 1999 and amended as of
October 4, 1999, between MotivePower Industries, Inc., a Pennsylvania
corporation ("MotivePower"), and Westinghouse Air Brake Company, a Delaware
corporation ("WABCO"), which provides for the merger (the "Merger") of
MotivePower with and into WABCO, with WABCO as the surviving corporation (the
"Surviving Corporation"), and the common stockholders of MotivePower becoming
stockholders of WABCO, all on the terms and conditions therein set forth, the
time at which the Merger becomes effective being hereinafter referred to as the
"Effective Time." Capitalized terms used but not defined herein have the
meanings specified in the Agreement.
As provided in the Agreement, at the Effective Time, by reason of the
Merger: (i) each issued and outstanding share of common stock, par value $.01
per share, of MotivePower ("MotivePower Common Stock") shall be converted into
0.66 shares of validly issued, fully paid and nonassessable shares of common
stock, par value $.01 per share, of WABCO ("WABCO Common Stock"), with cash paid
in lieu of fractional shares of WABCO Common Stock, and (ii) each share of
MotivePower Common Stock that is owned by MotivePower as treasury stock shall be
canceled and no WABCO Common Stock or other consideration shall be delivered in
exchange therefor. All such shares of MotivePower Common Stock, when so
converted, shall no longer be outstanding and shall automatically be canceled
and retired, and each holder of a certificate representing any such shares shall
cease to have any rights with respect thereto, except the right to receive (i)
certificates representing the number of whole shares of WABCO Common Stock into
which such shares have been converted, (ii) certain dividends and other
distributions and (iii) cash in lieu of a fractional share of WABCO Common
Stock.
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Westinghouse Air Brake Company
October 13, 1999
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The Merger and the Agreement are more fully described in WABCO's
Registration Statement on Form S-4 (the "Registration Statement") relating to
the registration of shares of WABCO Common Stock, which has been filed by WABCO
with the Securities and Exchange Commission pursuant to the Securities Act of
1933, as amended. The Registration Statement includes the Joint Proxy
Statement/Prospectus (the "Prospectus") of WABCO and MotivePower.
In rendering the opinions expressed below, we have relied upon the
accuracy of the facts, information and representations and the completeness of
the covenants contained in the Agreement, the Registration Statement, the
Prospectus and such other documents as we have deemed relevant and necessary
(including, without limitation, those described above). Such opinions are
conditioned, among other things, not only upon such accuracy and completeness as
of the date hereof, but also the continuing accuracy and completeness thereof as
of the Effective Time. Moreover, we have assumed the absence of any change to
any of such instruments between the date thereof and the Effective Time.
We have assumed the authenticity of all documents submitted to us as
originals, the genuineness of all signatures, the legal capacity of all natural
persons and the conformity with original documents of all copies submitted to us
for our examination. We have further assumed that: (i) the transactions related
to the Merger or contemplated by the Agreement will be consummated (A) in
accordance with the Agreement and (B) as described in the Prospectus; (ii) the
Merger will qualify as a statutory merger under the laws of the State of
Pennsylvania and the State of Delaware; and (iii) as of the date hereof, and as
of the Effective Time (as if made as of the Effective Time), the written
statements made by executives of WABCO and MotivePower contained in the WABCO
Tax Certificate and MotivePower Tax Certificate, respectively, each dated on or
about the date hereof, are and will be accurate in all respects, and neither
WABCO nor MotivePower will have provided written notification prior to the
Effective Time that a statement made in the WABCO Tax Certificate or MotivePower
Tax Certificate, respectively, is no longer accurate.
In rendering the opinions expressed below, we have considered
the applicable provisions of the Internal Revenue Code of 1986, as amended (the
"Code"), Regulations promulgated thereunder by the United States Treasury
Department (the "Regulations"), pertinent judicial authorities, rulings and
interpretations of the Internal Revenue Service and such other authorities as we
have considered relevant. It should be noted that the Code, the Regulations and
such judicial decisions, rulings, administrative interpretations and other
authorities are subject to change at any time and, in some circumstances, with
retroactive effect; and any such change could affect the opinions stated herein.
Furthermore, the opinions expressed below might not be applicable to MotivePower
shareholders who or which, for United States federal income tax purposes, are
nonresident alien individuals, foreign corporations, foreign partnerships,
foreign trusts or foreign
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Westinghouse Air Brake Company
October 13, 1999
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estates, or who acquired their MotivePower Common Stock pursuant to the exercise
of employee stock options or otherwise as compensation.
Based upon and subject to the foregoing, it is our opinion, as counsel
for WABCO, that, for federal income tax purposes:
(1) the Merger will constitute a "reorganization" within the meaning of
Section 368(a) of the Code, and WABCO and MotivePower will each be a
party to that reorganization within the meaning of Section 368(b) of
the Code;
(2) no gain or loss will be recognized by MotivePower or WABCO as
a result of the Merger;
(3) no gain or loss will be recognized by the shareholders of
MotivePower upon the conversion of their shares of MotivePower Common
Stock into shares of WABCO Common Stock pursuant to the Merger, except
with respect to cash, if any, received in lieu of fractional shares of
WABCO Common Stock;
(4) the aggregate tax basis of the shares of WABCO Common Stock
received in exchange for shares of MotivePower Common Stock pursuant to
the Merger (including a fractional share of WABCO Common Stock for
which cash is paid) will be the same as the aggregate tax basis of such
shares of MotivePower Common Stock;
(5) the holding period for shares of WABCO Common Stock received
in exchange for shares of MotivePower Common Stock pursuant to the
Merger will include the holder's holding period for such shares of
MotivePower Common Stock, provided such shares of MotivePower Common
Stock were held as capital assets by the holder at the Effective Time;
and
(6) a stockholder of MotivePower who receives cash in lieu of a
fractional share of WABCO Common Stock will recognize gain or loss
equal to the difference, if any, between such stockholder's basis in
the fractional share (determined under clause (iv) above) and the
amount of cash received.
In addition, reference is made to the statements in the Prospectus
under the caption "The Merger Transaction -- Material United States Federal
Income Tax Consequences of the Merger," which have been prepared or reviewed by
us. It is our opinion that the statements made
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Westinghouse Air Brake Company
October 13, 1999
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under the caption "Material United States Federal Income Tax Consequences of the
Merger," to the extent constituting a discussion of matters of federal income
tax law or legal conclusions with respect thereto, are true and correct in all
material respects.
Except as expressly set forth above, you have not requested, and we do
not herein express, any opinion concerning the tax consequences of, or any other
matters related to, the Merger. Our opinion also does not address U.S. federal
income tax consequences which may vary with, or are contingent upon, a
shareholder's individual circumstances.
We assume no obligation to update or supplement this letter to reflect
any facts or circumstances which may hereafter come to our attention with
respect to the opinions expressed above, including any changes in applicable law
which may hereafter occur.
This opinion is provided to, and may be relied upon by, you only, and
without our prior consent, it may not be relied upon, used, circulated, quoted
or otherwise referred to in any manner by any other person, firm, governmental
authority or entity whatsoever. Notwithstanding the foregoing, we hereby consent
to the reference to Xxxxxxxx & Xxxxx in the Prospectus and to the filing of this
opinion as an exhibit to the Registration Statement.
Very truly yours,
/s/ Xxxxxxxx & Xxxxx
