Exhibit 8.2
Xxxxx 00, 0000
X.xxxxxxx Inc.
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxx Xxxxxx, XX 00000
RE: Agreement and Plan of Merger by and among ClearOne Communications, Inc.
(f/k/a Xxxxxxx Communications Corporation), Tundra Acquisition
Corporation, and E.mergent, Inc. dated as of January 21, 2002 (the
"Merger Agreement")
Ladies and Gentlemen:
We have acted as counsel to E.mergent, Inc. ("E.mergent"), a Delaware
corporation, in connection with (i) the proposed merger (the "Merger") of
E.mergent with and into Tundra Acquisition Corporation ("Merger Sub"), a
Delaware corporation, which is a wholly-owned subsidiary of ClearOne
Communications, Inc. (f/k/a Xxxxxxx Communications Corporation), a Utah
corporation ("ClearOne"), and the surviving corporation in the Merger; and (ii)
ClearOne's filing of a Registration Statement on Form S-4 (the "Registration
Statement") relating to the registration under the Securities Act of 1933, as
amended (the "1933 Act"), of up to 873,000 shares of Common Stock of ClearOne
(the "ClearOne Shares"). Pursuant to the Merger Agreement, in the Merger the
shareholders of E.mergent will receive, in exchange for their shares of stock of
E.mergent ("E.mergent Shares"), merger consideration (the "Merger
Consideration") consisting of (i) an aggregate of $7,300,000 in cash (the "Cash
Portion") and (ii) an aggregate of 873,000 ClearOne Shares (the "Stock
Portion"). No other consideration will be received for their E.mergent Shares,
except that cash will be paid to E.mergent shareholders in lieu of any
fractional ClearOne Shares that they would otherwise receive in the Merger.
You have requested our opinion with respect to certain United States
federal income tax consequences of the Merger. The Merger is being consummated
pursuant to the Merger Agreement. Unless otherwise defined, capitalized terms
used herein have the meanings assigned to them in the Merger Agreement.
In connection with rendering our opinion, we have reviewed the Merger
Agreement, including the Exhibits thereto, the Proxy Statement/Prospectus
constituting part of the Registration Statement filed by ClearOne with the
Securities and Exchange Commission on February 6, 2002, and such other documents
and corporate records as we have deemed necessary or appropriate as a basis
therefor. We have assumed that the representations and warranties contained in
the Merger Agreement were true, correct and complete when made and will continue
to be true, correct and complete through the Effective Time, and that the
parties have complied with and, if applicable, will continue to comply with the
covenants contained in the Merger Agreement. We also have assumed that
statements as to factual matters contained in the Proxy Statement/Prospectus are
true, correct, and complete and will continue to be true, correct, and complete
through the Effective Time. Finally, we have relied on the representations made
by officers of E.mergent and ClearOne in tax certificates provided to us dated
March 15, 2002, and we have assumed that such representations will continue to
be true, correct, and complete through the Effective Time.
Based upon the foregoing, in reliance thereon and subject thereto, and
based upon the Internal Revenue Code of 1986, as amended (the "Code"), the
Treasury Regulations promulgated thereunder, judicial decisions, revenue rulings
and revenue procedures of the Internal Revenue Service, and other administrative
pronouncements, all as in effect on the date hereof, and assuming that the
Merger and related transactions will be consummated in accordance with the terms
of the Merger Agreement, it is our opinion that the Merger will qualify as a
reorganization within the meaning of Section 368(a) by virtue of Section
368(a)(2)(D) of the Code, and that each of Emergent, ClearOne and Merger Sub
will be a party to such reorganization within the meaning of Section 368(b) of
the Code. Furthermore, we hereby confirm that the discussion set forth under the
caption "Material U.S. Federal Income Tax Consequences" in the Proxy
Statement/Prospectus, insofar as such discussion constitutes statements of
United States federal income tax law or legal conclusions, subject to the
assumptions, limitations and qualifications set forth therein, accurately
reflects our opinion of the material United States federal income tax
consequences of the Merger.
No opinion is expressed as to any matter not specifically addressed
above, including the accuracy of the representations or reasonableness of the
assumptions relied upon by us in rendering the opinion set forth above. Our
opinion is based on current United States federal income tax law and
administrative practice, and we do not undertake to advise you as to any future
changes in United States federal income tax law or administrative practice that
may affect our opinion unless we are specifically retained to do so. We consent
to the use of this opinion as an Exhibit to the Registration Statement that
includes the Proxy Statement/Prospectus, and to the references to Xxxxxxxxxx &
Xxxxx, P.A. under the captions "The Transaction--Material Federal Income Tax
Consequences" and "Legal Opinions" in the Proxy Statement/Prospectus. In giving
our consent, we do not admit that we are "experts" within the meaning of Section
11 of the Securities Act of 1933 or within the category of persons whose consent
is required by Section 7 of the Securities Act of 1933.
Very truly yours,
XXXXXXXXXX & XXXXX, P.A.
/s/ Xxxxxx Xxxxxxx
