Exhibit 8.1
May 7, 2002
ClearOne Communications, Inc.
0000 Xxxxxxxx Xxx
Xxxx Xxxx Xxxx, XX 00000
Re: Agreement and Plan of Merger, dated January 21, 2002 between ClearOne
Communications, Inc., Tundra Acquisition Corporation and E.mergent Inc.
Ladies and Gentlemen:
We have acted as counsel to ClearOne Communications, Inc., a Utah
corporation ("ClearOne") in connection with the Agreement and Plan of Merger
(the "Merger Agreement") dated as of January 21, 2002 between E.mergent, Inc.
("E.mergent"), a Delaware corporation, ClearOne, and Tundra Acquisition
Corporation, a Delaware corporation and a wholly owned subsidiary of ClearOne
("Merger Sub"), pursuant to which E.mergent shall be merged with and into
MegerSub with MergerSub the surviving corporation in the merger (the "Merger"),
on the terms and conditions set forth therein, the time at which the Merger
become effective being hereafter referred to as the "Effective Time." For
purposes of this opinion, capitalized terms used and not otherwise defined
herein shall have the meaning ascribed thereto in the Merger Agreement. This
opinion is being delivered solely in connection with ClearOne's Registration
Statement on Form S-4 relating to the proposed Merger pursuant to the Merger
Agreement (the "Registration Statement") to which this opinion appears as an
exhibit.
In acting as counsel to ClearOne in connection with the Merger, we have,
in preparing our opinion, as hereinafter set forth, participated in the
preparation of the Merger Agreement and the preparation and filing of the
Registration Statement.
You have requested that we render the opinion set forth below. In
rendering such opinion, we have assumed with your consent that (i) the Merger
will be effected in accordance with the Merger Agreement, (ii) the statements
concerning the Merger set forth in the Merger Agreement and the Registration
Statement are true, complete and correct and will remain true, complete and
correct at all times up to and including the Effective Time, (iii) the factual
representations made by ClearOne, E.mergent and Merger Sub in their respective
letters delivered to us for purposes of this opinion (the "Representation
Letters") are true, complete and correct and will remain true, complete and
correct at all times up to and including the Effective Time, and (iv) any
representations made in the Representation Letters "to the knowledge of," or
based on the belief of, ClearOne, E.mergent and Merger Sub or similarly
qualified are true, complete and correct without such qualification. We have
also assumed that the parties have complied with and, if applicable, will
continue to comply with, the covenants contained in the Merger Agreement.
We have examined the documents referred to above and the originals, or
duplicates or certified or conformed copies, of such records, documents,
certificates or other instruments and made such other inquiries as in our
judgment are necessary or appropriate to enable us to render the opinion set
forth below. We have not, however, undertaken any independent investigation of
any factual matter set forth in any of the foregoing.
If any of the above-described assumptions are untrue for any reason or if
the Merger is effected on a factual basis different from that contemplated in
the Merger Agreement and the Registration Statement, the opinion expressed
herein may be inapplicable. Our opinion is based on the Internal Revenue Code of
1986, as amended (the "Code"), Treasury Regulations, administrative
interpretations, and judicial precedents as of the date hereof. If there is any
subsequent change in the applicable law or regulations, or if there are
subsequently any new applicable administrative or judicial interpretations of
the law or regulations, the opinion expressed herein may become inapplicable.
Based on and subject to the foregoing, we hereby confirm our opinion set
forth in the discussion contained in the Registration Statement under the
caption "Material U.S. Federal Income Tax Consequences."
We express our opinion herein only as to those matters specifically set
forth in the Registration Statement and no opinion should be inferred as to the
tax consequences of the Merger under any state, local or foreign law, or with
respect to other areas of United States federal taxation. We are members of the
Bar of the State of Utah, and we do not express any opinion herein concerning
any law other than the federal law of the United States.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement, and to the references to our firm name wherever
appearing in the Registration Statement with respect to the discussion of the
material U.S. Federal income tax consequences of the Merger, including the proxy
statement/prospectus constituting a party thereof. In giving this consent, we do
not thereby admit that we 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,
XXXXX XXXXX XXXXXXXX & XXXXXXXXX, P.C.
/s/ Xxxxx Xxxxx Xxxxxxxx & XxXxxxxxx, P.C.
