EXHIBIT 8.1
[LETTERHEAD OF XXXXXXX, XXXXXXX & XXXXXXXX LLP]
January 3, 2000
Xxxxxx.xxx Inc.
0000 Xxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx Xxxxxx, XX 00000
Ladies and Gentlemen:
This opinion is being delivered to you in connection with (i) the
Agreement and Plan of Merger, dated as of October 22, 1999 (the "Agreement"),
between Xxxxxx.xxx Inc., a Delaware corporation ("Xxxxxx.xxx"), Rocket
Acquisition Corp., a Washington corporation and a wholly owned subsidiary of
Xxxxxx.xxx ("Merger Sub"), and xXxxx.xxx, Inc., a Washington corporation
("xXxxx.xxx"), and (ii) the preparation and filing with the Securities and
Exchange Commission of a Form S-4 Registration Statement relating to the Merger
(the "Registration Statement"). Pursuant to the Agreement, Merger Sub will merge
with and into xXxxx.xxx (the "Merger"), and xXxxx.xxx will become a wholly owned
subsidiary of Xxxxxx.xxx.
Except as otherwise provided, capitalized terms referred to herein
have the respective meanings ascribed to them in the Agreement. All section
references, unless otherwise indicated, are to the Internal Revenue Code of
1986, as amended (the "Code").
We have acted as legal counsel to Xxxxxx.xxx in connection with the
Merger. As such, and for the purpose of rendering this opinion, we have
examined and are relying upon (without any independent investigation or review
thereof) the truth and accuracy, at all relevant times, of the statements,
covenants, representations and warranties contained in the following documents
(including all schedules and exhibits thereto):
1. The Agreement;
2. The Registration Statement;
3. Such other instruments and documents related to Xxxxxx.xxx,
xXxxx.xxx and Merger Sub and to the consummation of the Merger and the other
transactions contemplated by the Agreement as we have deemed necessary or
appropriate.
Xxxxxx.xxx Inc. January 3, 2000
Page 2
In connection with rendering this opinion, we have assumed or obtained
representations (and are relying thereon, without any independent investigation
or review thereof) that:
A. Original documents submitted to us (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) due execution
and delivery of all documents where due execution and delivery are prerequisites
to the effectiveness thereof; and
B. The Merger will be consummated in accordance with the Agreement
without any waiver or breach of any material provision thereof, and the Merger
will be effective under applicable state law.
Based on our examination of the foregoing items and subject to the
assumptions, exceptions, limitations and qualifications set forth herein and in
the Registration Statement under the heading "The Merger Agreement - Federal
Income Tax Considerations,", we are of the opinion that the statements regarding
United States federal income tax consequences set forth in the Registration
Statement under the heading "The Merger Agreement - Federal Income Tax
Considerations," insofar as they constitute statements of law or legal
conclusions, are correct in all material respects and represent a description of
the material federal income tax consequences of the Merger. We express no
opinion as to any federal, state or local, foreign or other tax consequences,
other than as set forth in the Registration Statement under the heading "The
Merger Agreement - Federal Income Tax Considerations."
In addition to the assumptions and representations described 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 will not
successfully assert a contrary position. Furthermore, no assurance can be given
that future legislative, judicial or administrative changes, on either a
prospective or retroactive basis, will not adversely affect the accuracy of the
conclusions stated herein. Nevertheless, we undertake no responsibility to
advise you of any new developments in the application or interpretation of the
federal income tax laws.
(2) No opinion is expressed as to any transaction other than the
Merger (whether or not undertaken in connection with the Merger) or as to any
transaction whatsoever, including the Merger, if all the transactions described
in the Agreement are not consummated in accordance with the terms of such
Agreement and without waiver or breach of any material provision thereof or if
all of the statements, representations, warranties and assumptions upon which we
relied are not true and accurate at all relevant times. In the event any one of
the
Xxxxxx.xxx Inc. January 3, 2000
Page 3
statements, representations, warranties or assumptions upon which we have relied
to issue this opinion is incorrect, our opinion might be adversely affected and
may not be relied upon.
This opinion is rendered to you solely in connection with the filing
of the Registration Statement. We hereby consent to the filing of this opinion
as an exhibit to the Registration Statement. We also consent to the references
to our firm name wherever appearing in the Registration Statement with respect
to the discussion of the federal income tax consequences of the Merger,
including any amendments to the Registration Statement. This opinion may not be
relied upon for any other purpose, and may not be made available to any other
person, without our prior written consent.
Very truly yours,
XXXXXXX, PHLEGER & XXXXXXXX LLP
