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EXHIBIT 8.02
September 28, 1999
iMALL, Inc.
000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Re: AGREEMENT AND PLAN OF MERGER DATED AS OF JULY 12, 1999 AMONG
AT HOME CORPORATION, SHOP NEVADA, INC. AND IMALL, INC.
Ladies and Gentlemen:
We have acted as counsel to iMALL, Inc., a Nevada corporation (the
"Company"), in connection with the proposed merger of Shop Nevada, Inc., a
Nevada corporation ("Merger Sub") and wholly-owned subsidiary of At Home
Corporation ("Parent"), with and into the Company (such transaction, the
"Merger") pursuant to an Agreement and Plan of Merger dated as of July 12, 1999
(the "Merger Agreement") among Parent, Merger Sub and the Company. Capitalized
terms not defined herein have the meanings specified in the Merger Agreement.
This opinion is being delivered in connection with the filing of the
registration statement on Form S-4 relating to the proposed Merger pursuant to
the Merger Agreement (the "Registration Statement") filed with the Securities
and Exchange Commission ("SEC") on September 28, 1999 to which this opinion
appears as an exhibit.
In acting as counsel to the Company in connection with the Merger, we have
participated in the preparation of the Merger Agreement and the preparation and
filing of the Registration Statement with the SEC.
You have requested that we render the opinion set forth below. In rendering
our opinion, we have examined and, with your consent, are relying 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 (i) the Merger Agreement (including any Exhibits, Annexes and
Schedules thereto), (ii) the Registration Statement (including the
Prospectus/Proxy Statement filed as part thereof), (iii) the representations
made to us by Parent and Merger Sub, and the Company in their respective letters
provided to us and to Fenwick & West, counsel to Parent, each dated the date
hereof (the "Representation Letters"), and (iv) such other documents and
corporate records as we have deemed necessary or appropriate for purposes of our
opinion.
In addition, we have assumed, with your consent, that:
1. Original documents (including signatures) are authentic, documents
submitted to us as copies conform to the original documents, and there
has been
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iMALL, Inc.
September 28, 1999
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(or will be by the Effective Time of the Merger) due execution and
delivery of all documents where due execution and delivery are
prerequisites to effectiveness thereof;
2. The Merger will be consummated in the manner contemplated by, and
in accordance with the provisions of, the Merger Agreement, and
will be effective under the laws of the State of Nevada;
3. All statements, descriptions and representations contained in any
of the documents referred to herein or otherwise made to us are
true, complete and correct, and no actions have been taken or
will be taken which are inconsistent with such statements,
descriptions or representations or which make any such
statements, descriptions or representations untrue, incomplete or
incorrect at the Effective Time;
4. Any statements made in any of the documents referred to herein
"to the knowledge of" or similarly qualified are true, complete
and correct and will continue to be true, complete and correct at
all times up to and including the Effective Time, in each case
without such qualification; and
5. The parties have complied with and, if applicable, will continue
to comply with, the covenants contained in the Merger Agreement.
Based upon the foregoing, and subject to the qualifications and limitations
stated herein, we are of the opinion that the Merger will constitute a
reorganization under section 368(a) of the Internal Revenue Code of 1986, as
amended (the "Code").
In addition to the matters set forth above, this opinion is subject to the
exceptions, limitations and qualifications set forth below.
1. This opinion represents our best judgment regarding the
application of United States 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
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
United States federal income tax laws.
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iMALL, Inc.
September 28, 1999
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2. No opinion is expressed as to any transaction other than the
Merger as described in the Merger Agreement or to any transaction
whatsoever, including the Merger, if all the transactions
described in the Merger Agreement are not consummated in
accordance with the terms of the Merger Agreement and without
waiver or breach of any provisions thereof or if all of the
representations, warranties, statements and assumptions upon
which we have relied are not true and accurate at all relevant
times. In the event that any one of the statements,
representations, warranties or assumptions upon which we have
relied to issue this opinion is incorrect, our opinion might be
adversely affected and may not be relied upon.
This opinion is rendered to you in connection with the filing of the
Registration Statement with the SEC and is not to be used, circulated, quoted or
otherwise referred to or relied upon for any other purpose without our express
written permission. In addition, this opinion may not be relied upon by or
furnished to any other person, firm, corporation or entity without our prior
written consent. We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm name therein under the
caption "The Merger -Material United States federal income tax consequences of
the Merger." In giving this consent, we do not admit that we are within the
category of persons whose consent is required under Section 7 of the Securities
Act of 1933, as amended, or the rules or regulations of the SEC promulgated
thereunder.
Very truly yours,
XXXXXX & XXXXXXX
