[Xxxxxxx Xxxxxxx & Xxxxxxxx Letterhead]
[ ] [ ], 2000
Re: Agreement and Plan of Merger
dated as of December 21, 1999, as amended,
among America Online, Inc., MQ Acquisition, Inc.
and XxxXxxxx.xxx, Inc.
America Online, Inc.
00000 XXX Xxx
Xxxxxx, Xxxxxxxx 00000-0000
Ladies and Gentlemen:
We have acted as special counsel to America Online, Inc., a Delaware
corporation ("Parent"), in connection with the proposed merger (the "Merger")
of MQ Acquisition, Inc. ("Sub"), a Delaware corporation and a direct, wholly-
owned subsidiary of Parent, with and into XxxXxxxx.xxx, Inc., a Delaware
corporation (the "Company"). All capitalized items used but not defined herein
have the meanings ascribed to them in the Agreement and Plan of Merger, dated
as of December 21, 1999, as amended, among Parent, Sub and the Company (the
"Merger Agreement"). This opinion is being delivered in connection with
Xxxxxx's Registration Statement on Form S-4 relating to the proposed Merger
pursuant to the Merger Agreement (the "Registration Statement") to which this
opinion appears as an exhibit.
In acting as counsel to Parent in connection with the Merger, we have, in
preparing our opinion, as hereinafter set forth, participated in the
preparation of the Merger Agreement and the preparation and filing with the
Securities and Exchange Commission of the Prospectus contained in the
Registration Statement.
You have requested that we render the opinion set forth below. In rendering
such opinion, we have assumed with your consent that (i) the Merger will be
effected in accordance with the Merger Agreement (and exhibits thereto) and the
General Corporation Law of the State of Delaware and as described in the
Registration Statement, (ii) the representations made by Parent, Sub and the
Company in letters provided to us and Xxxxx, Brown & Xxxxx, special tax advisor
to the Company, dated as of the date hereof (the "Tax Certificates") are true,
correct and complete, and will be true, correct and complete as of the
Effective Time (as if made as of the Effective Time), (iii) any representations
made in such letters "to the best knowledge of" or similarly qualified are
true, correct and complete without such qualification and (iv) as to all
matters as to which any person or entity represents that it 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. We have also assumed that the representations and warranties
contained in the Merger Agreement, and statements as to factual matters
contained in the Registration Statement, are true, correct and complete as of
the date hereof, and will be true, correct and complete as of the Effective
Time, and that the parties have complied with and, if applicable, will continue
to comply with, the covenants contained in the Merger Agreement. We have
examined the documents referred to above and the originals, or duplicates or
certified or conformed copies, of such records, documents, certificates or
other instruments and made such other inquiries as in our judgment are
necessary or appropriate to enable us to render the opinion set forth below. We
have not, however, undertaken any independent investigation of any factual
matter set forth in any of the foregoing.
We have assumed the genuineness of all signatures, the legal capacity of all
natural persons, the authenticity of all documents submitted to us as
originals, the conformity to original documents of all documents submitted to
us as certified or photostatic copies and the authenticity of the originals of
such documents.
If the Merger is effected on a factual basis different from that
contemplated in the Merger Agreement, the Tax Certificates and the Prospectus
the opinion expressed herein may be inapplicable. Our opinion is based on the
Internal Revenue Code of 1986, as amended (the "Code"), Treasury Regulations,
administrative interpretations, and judicial precedents as of the date hereof.
It should be noted that statutes, regulations, judicial decisions and
administrative interpretations are subject to change at anytime and, in some
circumstances, with retroactive effect. If there is any subsequent change in
the applicable law or regulations, or if there are subsequently any new
applicable administrative or judicial interpretations of the law or
regulations, the opinion expressed herein may become inapplicable. We do not
undertake to advise you of any subsequent changes in applicable law.
To the extent that this opinion addresses the federal income tax
consequences of the holders of Company Common Stock, this opinion is applicable
only to holders who hold their shares as capital assets within the meaning of
Section 1221 of the Code. In addition, the 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
Registration Statement under the caption "Material United States Federal Income
Tax Consequences".
Subject to the foregoing and to the qualifications and limitations set forth
herein, and assuming that the Merger will be consummated in accordance with the
Merger Agreement (and exhibits thereto) and the General Corporation Law of the
State of Delaware and as described in the Registration Statement, we are of the
opinion that for United States federal income tax purposes (i) the Merger will
constitute a reorganization within the meaning of Section 368(a) of the Code;
(ii) no gain or loss will be recognized by Parent, the Company or Sub as a
result of the Merger; (iii) no gain or loss will be recognized by holders of
Company Common Stock upon the exchange of all of their Company Common Stock
solely for Parent Common Stock in the Merger, except with respect to cash, if
any received in lieu of fractional shares of Parent Common Stock; (iv) the
aggregate adjusted basis of the Parent Common Stock received by holders of
Company Common Stock in the Merger (treating fractional share interests in
Parent Common Stock as having been issued to such holders in the Merger and
then redeemed for cash) will be the same as such holders' aggregate tax basis
in the Company Common Stock surrendered in the Merger and (v) the holding
period of the Parent Common Stock received by such holder in the Merger will
include the period during which the holder held the Company Common Stock
surrendered in the Merger.
We express our opinion herein only as to those matters specifically set
forth above and no opinion should be inferred as to the tax consequences of the
Merger under any state, local or foreign law, or with respect to other areas of
United States federal taxation. We are members of the Bar of the State of New
York, and we do not express any opinion herein concerning any law other than
the federal law of the United States.
We hereby consent to the filing of this opinion as Exhibit 8.1 to the
Registration Statement and to the use of our name under the caption "Material
United States Federal Income Tax Consequences of the Merger."
Very truly yours,
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