Exhibit 8.1
Form of Mayer, Brown, Xxxx & Maw LLP Tax Opinion
[Xxxxx, Xxxxx, Xxxx & Maw LLP Letterhead]
__________, 2005
iPCS, Inc.
0000 Xxxxx Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
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 iPCS, Inc., a Delaware corporation ("iPCS")
in connection with the proposed merger ("Merger") of Horizon PCS, Inc., a
Delaware corporation ("Horizon"), with and into 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 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 iPCS and Horizon; (ii) the
Registration Statement; and (iii) such other instruments and documents related
to the formation, organization and operation of iPCS and Horizon 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 iPCS and Horizon 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, the
Merger will be treated as a reorganization within the meaning of section 368(a)
of the Code. Further, we adopt and confirm the statements under the caption
"Material United States Federal Income Tax Consequences" in the Registration
Statement as our opinion of the material United States federal income tax
consequences of the Merger, to the extent that such statements constitute legal
conclusions.
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.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name under the headings "Material
United States Federal Income Tax Consequences--The Merger" and "Legal Matters"
in the Registration Statement. In giving this consent, we do not admit that we
are experts within the meaning of Section 11 of the Securities Act or within the
category of persons whose consent is required under Section 7 of the Securities
Act.
Sincerely,
Xxxxx, Xxxxx, Xxxx & Maw LLP
