EXHIBIT 8.1
XXXXXXXX & XXXXXXXX LLP
ATTORNEYS AT LAW
000 XXXXXX XXXXXX
XXX XXXXXXXXX, XXXXXXXXXX 00000-2482
__________ 1998
Digital Microwave Corporation
000 Xxxx Xxxxxxx Xxx
Xxx Xxxx, XX 00000
Re: Agreement and Plan of Reorganization and Amalgamation, dated as of
December 22, 1997, by and among Digital Microwave Corporation, a
Delaware Corporation, South Amalgamation Sub Ltd., a New Zealand
Company, and MAS Technology Limited, a New Zealand Company
Ladies and Gentlemen:
This opinion is being delivered to you pursuant to Section 6.01(d) of
the Agreement and Plan of Reorganization and Amalgamation, dated as of
December 22, 1997 (the "Reorganization Agreement"), by and among Digital
Microwave Corporation, a Delaware corporation ("DMC"), South Amalgamation Sub
Ltd., a New Zealand company and a wholly- owned subsidiary of DMC ("Sub") and
MAS Technology Limited, a New Zealand company ("MAS"). Pursuant to the
Reorganization Agreement, Sub will amalgamate with and into MAS (the
"Reorganization"). As a result of the Reorganization, MAS will become a
wholly-owned subsidiary of DMC and the former shareholders of MAS will
receive shares of DMC common stock, all on the terms set forth in the
Reorganization Agreement.
The Reorganization Agreement and certain proposed transactions incident
thereto are described in the Registration Statement on Form S-4 filed by DMC
with the Securities and Exchange Commission (the "Registration Statement"),
which includes the Proxy Statement/Prospectus of DMC and MAS (the "Proxy
Statement/Prospectus"). Unless otherwise indicated, any capitalized terms used
herein and not otherwise defined have the meaning ascribed to them in the Proxy
Statement/Prospectus.
We have acted as legal counsel to DMC and Sub in connection with the
Reorganization. As such, and for purposes of rendering this opinion, we have
examined (or will examine on or prior to the Effective Date) and are familiar
with the Reorganization Agreement, the Registration Statement, and such other
presently existing documents, records and matters of law as we have deemed
necessary or appropriate in connection with rendering this opinion.
XXXXXXXX & XXXXXXXX LLP
Digital Microwave Corporation
__________, 1998
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In addition, we have assumed (i) that the Reorganization will be
consummated in the manner contemplated by the Proxy Statement/Prospectus and in
accordance with the provisions of the Reorganization Agreement, (ii) the truth
and accuracy of the representations and warranties made by DMC and MAS in the
Reorganization Agreement, (iii) the truth and accuracy of the certificates of
representations to be provided to us by DMC and MAS, and (iv) that any
representation made "to the knowledge" or similarly qualified is correct
without such qualification.
The conclusions expressed herein represent our judgement of the proper
treatment of certain aspects of the Reorganization under the income tax laws of
the United States based upon the Internal Revenue Code of 1986, as amended (the
"Code"), Treasury Regulations, rulings and other pronouncements of the Internal
Revenue Service (the "IRS") currently in effect, and judicial decisions, all of
which are subject to change, prospectively or retroactively. No assurance can
be given that such changes will not take place, or that such changes would not
affect the conclusions expressed herein. Furthermore, our opinion represents
only our best judgment of how a court would conclude if presented with the
issues addressed herein and is not binding upon either the IRS or any court.
Thus, no assurance can be given that a position taken in reliance on our
opinion will not be challenged by the IRS or rejected by a court.
Our opinion relates solely to the tax consequences of the Reorganization
under the federal income tax laws of the United States, and we express no
opinion (and no opinion should be inferred) regarding the tax consequences of
the Reorganization under the laws of any other jurisdiction. This opinion
addresses only the specific issues set forth below, and does not address any
other tax consequences that may result from the Reorganization or any other
transaction (including any transaction undertaken in connection with the
Reorganization).
No opinion is expressed as to any transaction other than the
Reorganization as described in the Reorganization Agreement or as to any
transaction whatsoever, including the Reorganization, if all of the
transactions described in the Reorganization Agreement are not consummated in
accordance with the terms of such Reorganization Agreement and without waiver
or breach of any material provision thereof, or if all the representation,
warranties, statements and assumptions upon which we rely are not true and
accurate at all relevant times. In the event any one of the statements,
representations, warranties or assumptions upon which we rely to issue this
opinion are incorrect, our opinion might be adversely affected and may not be
relied upon.
Based upon and subject to the foregoing, we are of the opinion that:
(1) The Reorganization will be a reorganization within the meaning
of Section 368(a) of the Code; and
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Digital Microwave Corporation
__________, 1998
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(2) DMC and MAS will each be a party to the reorganization within
the meaning of Section 368(b) of the Code.
We note that persons who are shareholders of MAS and who are otherwise
required to file a U.S. income tax return will be required to comply with
certain notice requirements prescribed in the Treasury Department temporary
regulations promulgated under Section 367 of the Code.
This opinion has been delivered to you for the purpose of satisfying the
conditions set forth in Section 6.01(d) of the Reorganization Agreement and
is intended solely for your benefit; 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 to the filing of this opinion as an exhibit to the Registration
Statement and further consent to all references to us in the Registration
Statement. In giving this consent, we do not thereby admit that we are in the
category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder, nor do we thereby admit that
we are experts with respect to any part of such Registration Statement within
the meaning of the term "experts" as used in the Securities Act of 1933, as
amended, or the rules and regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
DRAFT
/s/ Xxxxxxxx & Xxxxxxxx LLP
