EXHIBIT 8.2
[LETTERHEAD OF XXXXXXXX & XXXXXXXX LLP]
May [ ], 2002
XxXxxxx RentCorp
0000 Xxx Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Re: Agreement and Plan of Merger, dated as of December 20, 2001, by
and between Tyco Acquisition Corp. 33, a Nevada corporation and
XxXxxxx RentCorp, a California corporation
Ladies and Gentlemen:
We have acted as counsel to XxXxxxx RentCorp, a California corporation
("Company"), in connection with the proposed merger (the "Merger") of Company
with and into Tyco Acquisition Corp. 33 ("Acquiror"), a Nevada corporation and a
wholly-owned subsidiary of Tyco International Ltd. ("Guarantor"), a Bermuda
company, pursuant to the Agreement and Plan of Merger (the "Agreement") dated as
of December 20, 2001, by and between Acquiror and Company. The Merger is
described in the Registration Statement of Guarantor on Form S-4, as amended
(the "Registration Statement"), filed on January 8, 2002, with the Securities
and Exchange Commission (the "SEC") under the Securities Act of 1933, as amended
(the "Act"). The Registration Statement includes the proxy statement and
prospectus of Company and Guarantor (the "Proxy Statement/Prospectus"). This
opinion is being rendered pursuant to the Agreement and in connection with the
filing of the Registration Statement. Unless otherwise indicated, any
capitalized terms used herein and not otherwise defined have the meaning
ascribed to them in the Registration Statement.
In connection with this opinion, we have examined and are familiar with the
Agreement, the Registration Statement and such other presently existing
documents, records and matters of law as we have deemed necessary or appropriate
for purposes of our opinion. In addition, we have assumed (i) that the Merger
will be consummated in the manner contemplated by the Registration Statement and
in accordance with the Agreement, without waiver or modification of the material
terms and conditions thereof; (ii) the truth and accuracy, on the date of the
Agreement and on the date hereof, of the representations and warranties made by
Acquiror and Company in the Agreement; (iii) the truth and accuracy of the
officer's certificates dated May [ ], 2002 (the "Officer's Certificates")
provided to us by Guarantor and Company for use in preparing our opinion;
(iv) that any representation in an Officer's Certificate made "to the knowledge"
or similarly qualified is correct without such qualification; and (v) that the
aggregate value of the Guarantor Common Shares to be delivered to Company
stockholders in the Merger, relative to the aggregate value of the Merger
Consideration, as determined as of the Effective Time, will be sufficient to
satisfy the "continuity of interest" requirements of the Treasury Regulations
(and that Company will consent to increase the percentage of Company Common
Stock exchanged for Guarantor Common Shares to the extent necessary to satisfy
the continuity of interest requirements).
The conclusion expressed herein represents our judgment of the proper
treatment of certain aspects of the Merger 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 conclusion 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 Merger 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 Merger under
the laws of any other jurisdiction. This opinion addresses only the specific
issues set forth herein, and does not address any other tax consequences that
may result from the Merger or any other transaction.
No opinion is expressed as to any transaction other than the Merger as
described in the Agreement or as to any transaction whatsoever, including the
Merger, if all of the transactions described in the Agreement are not
consummated in accordance with the terms of the Agreement and without waiver or
breach of any material provision thereof, or if all the representations,
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 is incorrect, our opinion might be adversely affected and may not be
relied upon.
Based upon and subject to the foregoing, in our opinion, (i) the Merger will
constitute a "reorganization" within the meaning of Section 368(a) of the Code
that is not subject to Section 367(a)(1) of the Code pursuant to Treasury
Regulation Section 1.367(a)-3(c) (other than with respect to Company
shareholders who are or will be "five-percent transferee shareholders" within
the meaning of Treasury Regulation Section 1.367(a)-3(c)(5)(ii) and do not enter
into five-year gain recognition agreements in the form provided in Treasury
Regulation Section 1.367(a)-8) and (ii) each of Guarantor, Acquiror and Company
will be a "party to a reorganization" within the meaning of Section 368(b) of
the Code. In addition, the discussion contained in the section of the Proxy
Statement/ Prospectus entitled "The Merger--Material U.S. Federal Income Tax and
Bermuda Tax Consequences--U.S. Federal Income Tax Consequences--1. Consequences
of the merger," subject to the limitations and qualifications set forth herein
and in that discussion, constitutes our opinion as to the material United States
federal income tax consequences of the exchange of Company Common Stock for
Guarantor Common Shares and/or cash in the Merger.
This opinion is furnished to you solely for use in connection with the
Registration Statement. We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement. We also consent to the reference to our
firm name in the Proxy Statement/Prospectus under the captions "The
Merger--Material U.S. Federal Income Tax and Bermuda Tax Consequences--U.S.
Federal Income Tax Consequences--1. Consequences of the merger" and "Legal
Matters." In giving this consent, we do not admit that we come within the
category of persons whose consent is required under Section 7 of the Securities
Act or the rules and regulations of the SEC thereunder.
Very truly yours,
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