EXHIBIT 8.1
XXXXXXXX & XXXXXXXX LLP
ATTORNEYS AT LAW
000 XXXXXX XXXXXX
XXX XXXXXXXXX, XXXXXXXXXX 00000-2482
________ , 1998
Digital Microwave Corporation
000 Xxxx Xxxxxxx Xxx
Xxx Xxxx, XX 00000
Re: Agreement and Plan of Reorganization and Merger, dated as of July
22, 1998, by and among Digital Microwave Corporation, a Delaware
Corporation, Iguana Merger Corp., a Washington corporation, and
Innova Corporation, a Washington corporation
Ladies and Gentlemen:
This opinion is being delivered to you pursuant to Section 6.01(d) of the
Agreement and Plan of Reorganization and Merger, dated as of July 22, 1998 (the
"Merger Agreement"), by and among Digital Microwave Corporation, a Delaware
corporation ("DMC"), Iguana Merger Corp., a Washington corporation and a
wholly owned subsidiary of DMC ("Sub") and Innova Corporation, a Washington
corporation ("Innova"). Pursuant to the Merger Agreement, Sub will merge with
and into Innova (the "Merger"). As a result of the Merger, Innova will become a
wholly owned subsidiary of DMC and the former shareholders of Innova will
receive shares of DMC Common Stock, all on the terms set forth in the Merger
Agreement.
The Merger Agreement and certain proposed transactions incident thereto are
described in the Registration Statement on Form S-4 filed by DMC with the
Securities and Exchange Commission (the "Registration Statement"), which
includes the Proxy Statement/Prospectus of DMC and Innova (the "Proxy
Statement/Prospectus"). Unless otherwise indicated, any capitalized terms used
herein and not otherwise defined have the meaning ascribed to them in the Proxy
Statement/Prospectus.
We have acted as legal counsel to DMC and Sub in connection with the
Merger. As such, and for purposes of rendering this opinion, we have examined
(or will examine on or prior to the Effective Time) and are familiar with the
Merger Agreement, the Registration Statement, and such other presently existing
documents, records and matters of law as we have deemed necessary or appropriate
in connection with rendering this opinion.
In addition, we have assumed (i) that the Merger will be consummated in the
manner contemplated by the Proxy Statement/Prospectus and in accordance with the
provisions of the Merger Agreement, (ii) that all representations and warranties
made by DMC and Innova in the Merger Agreement, as well as those representations
made in the certificates of representations provided to us by DMC and Innova
are, and at the Effective Time will be, true and complete in all material
respects, and (iii) that any representation made "to the knowledge" or similarly
qualified is correct without such qualification. In our examination of
documents, we have assumed the authenticity of original documents, the accuracy
of copies, the genuineness of signatures, and the legal capacity of the
signatories.
The conclusions expressed herein represent our judgement 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
XXXXXXXX & XXXXXXXX LLP
Digital Microwave Corporation
____________, 1998
Page Two
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 conclusions 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 below, and does not address any other tax consequences that may
result from the Merger or any other transaction (including any transaction
undertaken in connection with the Merger).
No opinion is expressed as to any transaction other than the Merger as
described in the Merger Agreement or as to any transaction whatsoever, including
the Merger, if all of the transactions described in the Merger Agreement are not
consummated in accordance with the terms of such Merger Agreement and without
waiver or breach of any material provision thereof, or if all the
representation, 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 are incorrect, our opinion might be adversely affected and
may not be relied upon.
Based upon and subject to the foregoing, we are of the opinion that:
(1) The Merger will be a "reorganization" within the meaning of Section
368(a) of the Code; and
(2) DMC and Innova will each be a "party to a reorganization" within the
meaning of Section 368(b) of the Code.
This opinion has been delivered to you for the purpose of satisfying the
conditions set forth in Section 6.01(d) of the Merger Agreement and is intended
solely for your benefit; 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 to the filing of
this opinion as an exhibit to the Registration Statement and further consent to
all references to us in the Registration Statement. In giving this 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 of 1933, as amended, or the rules
and regulations of the Securities and Exchange Commission thereunder, nor do we
thereby admit that we are experts with respect to any part of such Registration
Statement within the meaning of the term "experts" as used in the Securities Act
of 1933, as amended, or the rules and regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
DRAFT
Xxxxxxxx & Xxxxxxxx LLP
