EXHIBIT 8.2
GRAY XXXX XXXX & FREIDENRICH
[LETTERHEAD]
October 6, 1995
Amati Communications Corporation
0000 Xx Xxxxxx Xxxx Xxxx
Xxxxxxxx Xxxx, XX 00000
Re: Merger pursuant to the Amended and Restated Agreement and Plan of
Reorganization and Merger (the "Agreement"), dated as of August 3,
1995, as amended by and among ICOT Corporation, a Delaware
corporation ("ICOT"), IA Acquisition Corporation, a California
corporation ("Sub"), and Amati Communications Corporation, a
California corporation ("Amati")
Gentlemen:
This opinion is being delivered to you in connection with the filing of a
registration statement on Form S-4 of a joint proxy statement/prospectus and
pursuant to Section 7.6 of the Agreement, pursuant to which Amati will merge
with and into Sub, a wholly-owned subsidiary of ICOT (the "Merger").
Except as otherwise provided, capitalized terms referred to herein have the
meanings set forth 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 Xxxxx in connection with the Merger. As
such, and for the purpose of rendering this opinion, we have examined (or will
examine on or prior to the Effective Time) and are relying (or will rely) 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 (including Exhibits);
2. Amendment No. 1 to the Registration Statement on Form S-4 (File No.
33-62023) filed by ICOT on September 6, 1995, and Amendment No. 2 to such
Registration Statement to be filed by ICOT on October 10, 1995, for the
purpose of registering the ICOT Common Stock to be issued in connection with
the Merger under the Securities Act of 1933, as amended (collectively, the
"Registration Statement");
3. Representations made by ICOT and Sub in a letter to us for our use
in rendering this opinion;
4. Representations made by Xxxxx to us for our use in rendering this
opinion;
5. Representations made to us by certain shareholders of Amati in
"Affiliate's Agreements"; and
6. Such other instruments and documents related to the formation,
organization and operation of ICOT, Amati and Sub or to the consummation of
the Merger and the transactions contemplated thereby as we have deemed
necessary or appropriate.
In connection with rendering this opinion, we have assumed or obtained
representations (and are relying thereon, without any independent investigation
or review thereof) 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) due execution and delivery of all
documents where due execution and delivery are prerequisites to
effectiveness thereof;
2. The Merger will be effective under the laws of the State of
California;
3. The shareholders of Amati do not, and will not on or before the
Effective Time, have an existing plan or intent to dispose of an amount of
ICOT Common Stock to be received in the Merger (or to dispose of Amati
capital stock in anticipation of the Merger) such that the shareholders of
Amati will not receive and retain a meaningful continuing equity ownership
in ICOT that is sufficient to satisfy the continuity of interest requirement
as specified in Treas. Reg. Section 1.368-1(b) and as interpreted in certain
Internal Revenue Service rulings and federal judicial decisions;
4. After the Merger, Sub will hold "substantially all" of Amati's
properties within the meaning of Section 368(a)(2)(D) of the Code;
5. To the extent any expenses relating to the Merger (or the "plan of
reorganization" within the meaning of Treas. Reg Section 1.368-1(c) with
respect to the Merger) are funded directly or indirectly by a party other
than the incurring party, such expenses will be within the guidelines
established in Revenue Ruling 73-54, 1973-1 C.B. 187; and any expenses paid
on behalf of Amati shareholders will not exceed one percent (1%) of the
total consideration that will be issued in the Merger to Amati shareholders
in exchange for their shares of Amati stock;
6. No Amati shareholder guaranteed any Amati indebtedness outstanding
during the period ending at the Effective Time and beginning with the
commencement of negotiations (whether formal or informal) regarding the
Merger, and at all relevant times, including as of the Effective Time, (i)
no outstanding indebtedness of Amati, ICOT or Sub has or will represent
equity for tax purposes; (ii) no outstanding equity of Amati, ICOT or Sub
has or will represent indebtedness for tax purposes and (iii) no outstanding
security, instrument, agreement or arrangement that provides for, contains
or represents either a right to acquire Amati stock or to share in the
appreciation thereof constitutes or will constitute "stock" for purposes of
Section 368(c) of the Code;
7. Xxxxxx Xxxxxx White & XxXxxxxxx, as counsel to ICOT, has delivered
to ICOT and not withdrawn an opinion, pursuant to Section 6.7 of the
Agreement, to the effect that the Merger will constitute a tax-free
reorganization within the meaning of Section 368(a) of the Code, which
opinion is substantially similar to this opinion; and
8. Any representation or statement made "to the knowledge of" or
otherwise similarly qualified is correct without such qualification. As to
all matters in which a signatory has represented that such signatory either
is not a party to, does not have, or is not aware of, any plan, intention,
understanding or agreement, there is in fact no such plan, intention,
understanding or agreement.
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, for federal income tax purposes, the Merger will be a
"reorganization" as defined in Section 368(a) of the Code.
In addition to the assumptions set forth above, this opinion is subject to
the exceptions, limitations and qualifications set forth below:
1. This opinion addresses only the classification of the Merger as a
reorganization under Section 368(a) of the Code and does not address any other
federal, state, local or foreign tax consequences that may result from the
Merger or any other transaction (including any transaction undertaken in
connection with the Merger). In particular, we express no opinion regarding the
tax consequences of the Merger as applied to holders of options, warrants for
Amati stock, or promissory notes, or that may be relevant to particular classes
of Amati shareholders such as dealers in securities, corporate shareholder
subject to the alternative minimum tax, foreign persons, and holders of shares
acquired upon exercise of stock options or in other compensatory transactions.
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2. No opinion is expressed as to (i) any transaction other than the Merger
as described in the Agreement (including without limitation any transaction in
which the Amati capital stock that was exchanged in the Merger was acquired by
the exchanging shareholder) or (ii) any transaction whatsoever (including the
Merger) if all 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 any of the representations, warranties,
statements and assumptions upon which we relied are not true and accurate at all
relevant times. In the event any one of the statements, representations,
warranties or assumptions upon which we have relied to issue this option is
incorrect, our opinion might be adversely affected and may not be relied upon.
3. This opinion letter 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, would 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.
4. This opinion is intended solely for the benefit of you and your
shareholders; it may not be relied upon for any other purpose or by any other
person or entity, and may not be made available to any other person or entity
without our prior written consent. We hereby consent, however, to the use of
this opinion as an exhibit to the Registration Statement and further consent to
the use of our name whenever appearing in the Registration Statement, including
the Prospectus/Proxy Statement constituting a part thereof, and any amendments
thereto.
Very truly yours,
GRAY XXXX XXXX & FREIDENRICH
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