Exhibit 8.2
[Letterhead of Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.]
May 9, 2005
Horizon PCS, Inc.
00 Xxxx Xxxx Xxxxxx
Xxxxxxxxxxx, Xxxx 00000-0000
Re: Agreement and Plan of Merger, dated as of March 17, 2005 (the "Merger
Agreement"), by and between iPCS, Inc. and Horizon PCS, Inc.
Ladies and Gentlemen:
We have acted as counsel to Horizon PCS, Inc., a Delaware corporation
("Horizon"), in connection with the proposed merger ("Merger") of Horizon with
and into iPCS, Inc., a Delaware corporation ("iPCS"), pursuant to the Merger
Agreement. Unless otherwise indicated, capitalized terms not defined herein
shall have the meaning set forth in the Merger Agreement. This opinion letter is
being delivered in connection with, and as of the date of the declaration of the
effectiveness by the Securities and Exchange Commission (the "Commission") of,
iPCS's registration statement on Form S-4 relating to the Merger (the
"Registration Statement") to which this opinion appears as an exhibit.
In rendering our opinions set forth below, we have examined (without any
independent investigation or verification) and relied upon the facts,
information, representations, covenants and agreements contained in the
originals or copies, certified or otherwise identified to our satisfaction of
(i) the description of the Merger as set forth in the Merger Agreement,
including representations and covenants of Horizon and iPCS; (ii) the
Registration Statement; and (iii) such other instruments and documents related
to the formation, organization and operation of Horizon and iPCS and related to
the consummation of the Merger as we have deemed necessary or appropriate. In
addition, we have relied upon (without our independent investigation or
verification) certain statements, representations, covenants and agreements made
by Horizon and iPCS, including factual statements and representations set forth
in their respective letters delivered to us for purposes of these opinions (the
"Representation Letters"), and we have assumed that (i) the Representation
Letters will be executed by appropriate officers as of the effective time of the
Merger and (ii) the Merger will be reported by Horizon and iPCS on their
respective United States federal income tax returns in a manner consistent with
the opinions set forth below. Our opinions assume and are expressly conditioned
on, among other things, the accuracy, completeness and truth of the facts,
information, representations, covenants, statements and agreements set forth in
the documents referred to above, both initially and continually as of the
effective time of the Merger, without any qualification as to knowledge or
belief.
In our examination, we have assumed the genuineness of all signatures, the legal
capacity of natural persons, the authenticity and completeness of all documents
submitted to us as originals,
and the conformity to original documents of all non-original documents submitted
to us. Also, we have assumed that the transactions related to the Merger or
contemplated by the Merger Agreement will be consummated in accordance with the
Merger Agreement and as described in the Registration Statement, and that none
of the terms and conditions contained therein will have been waived or modified
in any respect prior to the effective time of the Merger. We have further
assumed that all documents and instruments referred to in the Merger Agreement
are valid and binding in accordance with their terms.
In rendering our opinion, we have considered applicable provisions of the
Internal Revenue Code of 1986, as amended ("Code"), and the Treasury Regulations
promulgated thereunder ("Regulations"), pertinent judicial authorities, rulings
of the Internal Revenue Service ("IRS"), currently published administrative
rulings and procedures, and such other authorities as we have considered
relevant, in each case as in effect on the date hereof. It should be noted that
the Code, Regulations, judicial decisions, rulings, administrative
interpretations and such other authorities are subject to change at any time
and, in some circumstances, with retroactive effect. A change in any of the
authorities upon which our opinion is based, or any variation or difference in
any fact from those set forth or assumed herein or in the Registration
Statement, the Merger Agreement, the Representation Letters, or such other
document on which we relied, could affect our conclusions herein. Moreover,
there can be no assurance that our opinion will be accepted by the IRS or, if
challenged by the IRS, by a court.
To the extent this opinion addresses the United States federal income tax
consequences of the holders of Horizon common stock, this opinion only addresses
consequences to holders who hold their shares as capital assets within the
meaning of Section 1221 of the Code. In addition, conclusions set forth in this
opinion may not be fully applicable to shareholders subject to special treatment
under United States federal income tax law, as listed in the prospectus
contained in the Registration Statement under the caption "Material United
States Federal Income Tax Consequences."
Based solely upon and subject to the foregoing, we are of the opinion that under
current law, for United States federal income tax purposes:
1. The Merger will be treated as a reorganization within the meaning of
Section 368(a) of the Code.
2. No gain or loss will be recognized by Horizon or iPCS as a result of the
Merger.
3. A Horizon stockholder will not recognize any gain or loss upon the exchange
of shares of Horizon common stock for shares of iPCS common stock pursuant
to the Merger, except with repsect to cash received for fractional shares
as described in the Registration Statement.
4. A Horizon stockholder's aggregate initial tax basis of shares of iPCS
common stock received in the Merger, including any fractional share
interest for which cash is received, will equal
such stockholder's aggregate adjusted tax basis of Horizon common stock
held immediately prior to the effective time of the Merger.
5. A Horizon stockholder's holding period of the shares of iPCS common stock
received in the Merger, including any fractional share interest for which
cash is received, will include the period during which the Horizon
stockholder held the Horizon common stock surrendered in the Merger.
Except as set forth above, we express no opinion to any party as to the tax
consequences, whether United States federal, state, local or foreign, of the
Merger or of any transaction related thereto or contemplated by the Merger
Agreement. We are furnishing this opinion solely in connection with the filing
of the Registration Statement. We disclaim any undertaking to advise you of any
subsequent changes of the facts stated or assumed herein or any subsequent
changes in applicable law.
In accordance, with the requirements of Item 601(b)(23) under the Securities
Act, we hereby consent to the filing of this opinion as Exhibit 8.2 to the
Registration Statement on Form S-4 filed by iPCS with the Commission in
connection with the Merger. We also consent to the use of our name in the
Registration Statement under the headings "Material United States Federal Income
Tax Consequences - The Merger," and "Legal Matters." In giving such consent, we
do not thereby admit that we are in the category of persons whose consent is
required under Section 7 of the Securities Act.
Very truly yours,
/s/ Akin, Gump, Strauss, Xxxxx & Xxxx,
L.L.P.
Akin, Gump, Strauss, Xxxxx & Xxxx,
L.L.P.
