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EXHIBIT 8.3
[S&A LETTERHEAD]
January 26, 1998
Quality Food Centers, Inc.
00000 X.X. 00xx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
We refer to the Agreement and Plan of Merger dated as of November
6, 1997, as amended on January 20, 1998 (the "Agreement"), among Xxxx Xxxxx,
Inc., a Delaware corporation ("Parent"), Q-Acquisition Corp., a Washington
corporation and a wholly owned subsidiary of Parent ("Sub"), and Quality Food
Centers, Inc., a Washington corporation (the "Company"), which provides for the
merger (the "Merger") of Sub with and into the Company 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) all outstanding shares of Company Common Stock then held in the
treasury of the Company and any shares of Company Common Stock owned by Parent,
Sub, or by any other direct or indirect subsidiary of Parent or of the Company
will be canceled, and no capital stock of Parent, cash or other consideration
will be delivered in exchange therefor; (ii) each then issued and outstanding
share of capital stock of Sub will be converted into one validly issued, fully
paid and nonassessable share of Common Stock, no par value per share, of the
Company, as the Surviving Corporation; (iii) subject to the right of holders of
Company Common Stock to dissent from the Merger, each then outstanding share of
Company Common Stock (other than shares described in clause (i)) will be
converted into validly issued, fully paid and nonassessable shares of Parent
Common Stock; (iv) all Company Stock Rights will be assumed by Parent and
converted automatically into options to purchase shares of Parent Common Stock;
and (v) each vested Stock Unit will be converted into shares of Parent Common
Stock, and any unvested Stock Unit will be canceled and will not be outstanding
immediately prior to the Effective Time. Cash will be paid in lieu of fractional
shares of Parent Common Stock.
The Merger and the Agreement are more fully described in the
Parent's Registration Statement on Form S-4 to which this opinion is attached as
an exhibit (the "Registration Statement") relating to the registration of shares
of Parent Common Stock, which is
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SIDLEY & AUSTIN CHICAGO
Quality Food Centers, Inc.
being filed by Parent with the Securities and Exchange Commission pursuant to
the Securities Act of 1933, as amended. The Registration Statement includes the
Proxy Statement/Prospectus (the "Prospectus") of Parent and the Company.
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.
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 hereof and the
Effective Time. We have assumed that the parties have complied with and, if
applicable, will continue to comply with, the covenants contained in the
Agreement.
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 Washington; 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 Xxxxxx X. Xxxxx in a Company shareholder tax certificate and the written
statements of executives of Parent and the Company as contained in the Parent
Tax Certificate and the Company Tax Certificate, respectively, in all cases will
be accurate in all respects.
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 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, 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.
The opinions expressed below might not be applicable to Company
stockholders who, for federal income tax purposes, are nonresident alien
individuals, foreign corporations, foreign partnerships, foreign trusts or
foreign estates, or who acquired their Company Common Stock pursuant to the
exercise of employee stock options or otherwise as compensation.
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SIDLEY & AUSTIN CHICAGO
Quality Food Centers, Inc.
Based upon and subject to the foregoing, it is our opinion, as counsel
for the Company, that for federal income tax purposes:
(i) The Merger will constitute a reorganization within the
meaning of Section 368(a) of the Code, and the Company, Sub, and Parent
will each be a party to such reorganization within the meaning of
Section 368(b) of the Code;
(ii) No gain or loss will be recognized by Parent, Sub, or the
Company as a result of the Merger;
(iii) No gain or loss will be recognized by the shareholders of
the Company upon the exchange of their Company Common Stock solely for
shares of Parent Common Stock pursuant to the Merger, except with
respect to cash, if any, received in lieu of fractional shares of Parent
Common Stock;
(iv) The aggregate tax basis of the shares of Parent Common Stock
received solely in exchange for Company Common Stock pursuant to the
Merger (including fractional shares of Parent Common Stock for which
cash is received) will be the same as the aggregate tax basis of the
Company Common Stock exchanged therefor;
(v) The holding period for shares of Parent Common Stock received
solely in exchange for Company Common Stock pursuant to the Merger will
include the holding period of the Company Common Stock exchanged
therefor, provided such Company Common Stock was held as a capital asset
by the shareholder at the Effective Time; and
(vi) A shareholder of the Company who receives cash in lieu of a
fractional share of Parent Common Stock will recognize gain or loss
equal to the difference, if any, between such shareholder's tax basis in
such fractional share (as described in clause (iv) above) and the amount
of cash received.
Except as expressly set forth in paragraphs (i) through (vi),
inclusive, 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.
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 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.
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SIDLEY & AUSTIN CHICAGO
Quality Food Centers, Inc.
This opinion letter may be relied upon solely by you, and may not
be relied upon by, or furnished to, any other person, firm or corporation
without our prior written consent. However, we hereby consent to the filing of
this letter as an exhibit to the Registration Statement and to all references to
our firm included in or made part of the Registration Statement.
Very truly yours,
SIDLEY & AUSTIN
