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Exhibit 8.2
[WSGR Letterhead]
July 29, 1998
Sun Microsystems, Inc.
000 Xxx Xxxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
This opinion is being delivered to you pursuant to Section 6.1(c) of
the Agreement and Plan of Reorganization (the "Agreement"), dated as of June 30,
1998, among Sun Microsystems, Inc., a Delaware corporation ("Sun"), Apollo
Acquisition Corp., a Delaware corporation and a direct, wholly owned subsidiary
of Sun ("Merger Sub"), and NetDynamics, Inc., a California corporation
("NetDynamics"). Pursuant to the Agreement, Merger Sub will merge with and into
NetDynamics (the "Merger"), and NetDynamics will become a wholly-owned
subsidiary of Sun. Except as otherwise provided, capitalized terms used but not
defined herein shall 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 counsel to Sun in connection with the Merger. As
such, and for the purpose of rendering this opinion, we have examined, and 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 the following documents (including
all exhibits and schedules attached thereto):
1. the Agreement;
2. those certain tax representation letters delivered to us by Xxx,
Xxxxxx Sub and NetDynamics containing certain representations of
Sun, Xxxxxx Sub and NetDynamics (the "Tax Representation
Letters"); and
3. such other instruments and documents related to the formation,
organization and operation of Sun, Merger Sub and NetDynamics and
related to the consummation of the Merger and the other
transactions contemplated by the Agreement as we have deemed
necessary or appropriate.
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Sun Microsystems, Inc.
July 29, 1998
Page 2
In connection with rendering this opinion, we have assumed (without
any independent investigation or review thereof) that:
a. Original documents submitted to us (including signatures thereto)
are authentic, documents submitted to us as copies conform to the
original documents, and that all such documents have been (or
will be by the Effective Time) duly and validly executed and
delivered where due execution and delivery are a prerequisite to
the effectiveness thereof;
b. All representations, warranties and statements made or agreed to
by Xxx, Xxxxxx Sub and NetDynamics, their managements, employees,
officers, directors and shareholders in connection with the
Merger, including, but not limited to, those set forth in the
Agreement (including the exhibits thereto) and the Tax
Representation Letters are true and accurate at all relevant
times;
c. All covenants contained in the Agreement (including exhibits
thereto) and the Tax Representation Letters are performed without
waiver or breach of any material provision thereof;
d. The Merger will be reported by Xxx and NetDynamics on their
respective federal income tax returns in a manner consistent with
the opinion set forth below; and
e. Any representation or statement made "to the best of knowledge"
or similarly qualified is correct without such qualification.
Based on our examination of the foregoing items and subject to the
limitations, qualifications, assumptions and caveats set forth herein, we are of
the opinion that, if the Merger is consummated in accordance with the Agreement
(and without any waiver, breach or amendment of any of the provisions thereof)
and the statements set forth in the Tax Representation Letters are true and
correct as of the Effective Time, then for federal income tax purposes, the
Merger will be a reorganization within the meaning of Section 368(a) of the
Code.
This opinion does not address the various state, local or foreign tax
consequences that may result from the Merger or the other transactions
contemplated by the Agreement. In addition, no opinion is expressed as to any
federal income tax consequence of the Merger or the other transactions
contemplated by the Agreement except as specifically set forth herein, and this
opinion may not be relied upon except with respect to the consequences
specifically discussed herein.
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Sun Microsystems, Inc.
July 29, 1998
Page 3
No opinion is expressed as to any transaction other than the Merger as
described in the Agreement, or as to any other transaction whatsoever, including
the Merger, if all of the transactions described in the Agreement are not
consummated in accordance with the terms of the Agreement and without waiver of
any material provision thereof. To the extent that any of the representations,
warranties, statements and assumptions material to our opinion and upon which we
have relied are not accurate and complete in all material respects at all
relevant times, our opinion would be adversely affected and should not be relied
upon.
This opinion only represents our best judgment as to the federal
income tax consequences of the Merger and is not binding on the Internal Revenue
Service or any court of law, tribunal, administrative agency or other
governmental body. The conclusions are based on the Code, existing judicial
decisions, administrative regulations and published rulings. No assurance can be
given that future legislative, judicial or administrative changes or
interpretations would not adversely affect the accuracy of the conclusions
stated herein. Nevertheless, by rendering this opinion, we undertake no
responsibility to advise you of any new developments in the application or
interpretation of the federal income tax laws.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, however, we do not admit that we
are in the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended. This opinion is intended for the benefit of
Sun and may not be relied upon or utilized for any other purpose or by any other
person and may not be made available to any other person without our prior
written consent.
Very truly yours,
XXXXXX XXXXXXX XXXXXXXX & XXXXXX
Professional Corporation
/s/ Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
