EXHIBIT 8.1
{Letterhead of Xxxxxxx Xxxxx & Xxxxx LLP}
September __, 2004
Primus Knowledge Solutions, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
RE: MERGER PURSUANT TO THE AGREEMENT AND PLAN OF MERGER (THE
"AGREEMENT") DATED AS OF AUGUST 10, 2004 BY AND AMONG ART
TECHNOLOGY GROUP, INC., A DELAWARE CORPORATION ("PARENT"),
AUTOBAHN ACQUISITION, INC., A WASHINGTON CORPORATION AND A
WHOLLY-OWNED FIRST-TIER SUBSIDIARY OF PARENT ("MERGER SUB"),
AND PRIMUS KNOWLEDGE SOLUTIONS, INC., A WASHINGTON CORPORATION
(THE "COMPANY").
Ladies and Gentlemen:
This opinion is being delivered to you in connection with the Joint Proxy
Statement/Prospectus filed with the United States Securities and Exchange
Commission in connection with the Merger (as defined below). Except as otherwise
provided, capitalized items referred to herein have the same meaning as set
forth in the Agreement. All Section references, unless otherwise indicated, are
to the Internal Revenue Code of 1986, as amended (the "Code").
It is anticipated that, pursuant to the Agreement, Merger Sub will merge
with and into the Company pursuant to the applicable laws of the States of
Washington and Delaware (the "Merger"), and pursuant to the Agreement and as a
result of the Merger the identity and separate corporate existence of Merger Sub
will cease. Following the Merger, the Company will continue as a wholly-owned
subsidiary of Parent. The Merger is described in the Registration Statement on
Form S-4 (the "Registration Statement") of Parent which includes the Joint Proxy
Statement/Prospectus (the "Joint Proxy Statement/Prospectus").
In connection with this opinion, we have examined and are relying upon,
without independent investigation or review thereof, the truth and accuracy, at
all times, of the statements, covenants, representations and warranties
contained in: (i) the Agreement, including all exhibits thereto; (ii) the
Registration Statement, including the Joint Proxy Statement/Prospectus; (iii)
certificates of representations dated as of the date hereof provided to us by
officers of Parent, Merger Sub and the Company for purposes of this opinion; and
(iv) such other instruments and documents related to the formation,
organization, and operation of Parent, Merger Sub and the Company, the
consummation of the Merger, and related transactions as we deemed necessary or
appropriate.
Primus Knowledge Solutions, Inc.
______________, 2004
Page 2
In connection with rendering this opinion, we have assumed or obtained
representations (and are relying thereon without independent investigation or
review) 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 of the Merger, due execution and delivery of
all documents where execution and delivery are prerequisites to effectiveness
thereof;
2. The Merger will be effected in the manner contemplated in the Joint
Proxy Statement/Prospectus and in accordance with the terms of the Agreement,
and all of the statements, covenants, representations and warranties therein or
referred to above are true and will be true as of the Effective Time of the
Merger; and
3. Each of the contemplated transactions will be effective under the
applicable state law.
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 (i) the Merger will qualify as a "reorganization" within
the meaning of Section 368(a) of the Code, (ii) Parent, Merger Sub and the
Company will each be a "party to the reorganization" within the meaning of
Section 368(b) of the Code, and (iii) the discussion set forth in the
Registration Statement under the heading "Material United States federal income
tax consequences of the merger" correctly describes the material federal income
tax consequences of the Merger generally applicable to the Company shareholders.
In addition to the assumptions set forth above, this opinion is subject to
the exceptions, limitations and qualifications set forth below:
1. This opinion 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 could not
successfully assert a contrary opinion. Furthermore, no assurance can be given
that future legislative, judicial or administrative changes, either on a
prospective or retroactive basis, would not adversely affect the accuracy of the
conclusions stated herein.
2. This opinion does not address any other federal, state, local or
foreign tax consequences that may result from the Merger or any other related
transactions.
3. No opinion is expressed as to any transaction other than the Merger as
described in this opinion.
Primus Knowledge Solutions, Inc.
______________, 2004
Page 3
4. This opinion is being delivered solely for the purpose of being
included as an exhibit to the Registration Statement and may not be relied upon
for any other purpose or by any other person or entity, and may not be given to
any other person without our prior written consent. Notwithstanding the
foregoing, we do consent to the use of this opinion as an exhibit to the
Registration Statement and to the use of our name in the Registration Statement
where it appears.
Very truly yours,
XXXXXXX XXXXX & XXXXX LLP
By
Xxxxxx X. Xxxxxxxx
