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Exhibit 8.2
[XXXXXXXX & XXXXX LETTERHEAD]
July 19, 1999
Westinghouse Air Brake Company
0000 Xxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Ladies and Gentlemen:
We refer to the Agreement and Plan of Merger, as amended (the
"Agreement"), dated as of June 2, 1999 and amended as of July 19, 1999, between
MotivePower Industries, Inc., a Pennsylvania corporation ("MotivePower"), and
Westinghouse Air Brake Company, a Delaware corporation ("WABCO"), which provides
for the merger (the "Merger") of WABCO with and into MotivePower, with
MotivePower as the surviving corporation (the "Surviving Corporation"), and the
common stockholders of WABCO becoming stockholders of MotivePower, all on the
terms and conditions therein set forth, the time at which the Merger becomes
effective being hereinafter referred to as the "Effective Time." Capitalized
terms used but not defined herein have the meanings specified in the Agreement.
As provided in the Agreement, at the Effective Time, by reason
of the Merger: (i) each issued and outstanding share of common stock, par value
$.01 per share, of WABCO ("WABCO Common Stock") shall be converted into 1.30
shares of validly issued, fully paid and nonassessable shares of common stock,
par value $.01 per share, of MotivePower ("MotivePower Common Stock"), with cash
paid in lieu of fractional shares of MotivePower Common Stock, and (ii) each
share of WABCO Common Stock that is owned by WABCO as treasury stock shall be
canceled and no MotivePower Common Stock or other consideration shall be
delivered in exchange therefor. All such shares of WABCO Common Stock, when so
converted, shall no longer be outstanding and shall automatically be canceled
and retired, and each holder of a certificate representing any such shares shall
cease to have any rights with respect thereto, except the right to receive (i)
certificates representing the number of whole shares of MotivePower Common Stock
into which such shares have been converted, (ii) certain dividends and other
distributions and (iii) cash in lieu of a fractional share of MotivePower Common
Stock.
The Merger and the Agreement are more fully described in
MotivePower's Registration Statement on Form S-4 (the "Registration Statement")
relating to the registration of shares of MotivePower Common Stock, which has
been filed by MotivePower with the Securities and Exchange Commission pursuant
to the Securities Act of 1933, as amended. The Registration Statement includes
the Joint Proxy Statement/Prospectus (the "Prospectus") of MotivePower and
WABCO.
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Westinghouse Air Brake Company
July 19, 1999
Page 2
In rendering the opinions expressed below, we have relied upon
the accuracy of the facts, information and representations and the completeness
of the covenants contained in the Agreement, the Registration Statement, the
Prospectus and such other documents as we have deemed relevant and necessary
(including, without limitation, those described above). Such opinions are
conditioned, among other things, not only upon such accuracy and completeness as
of the date hereof, but also the continuing accuracy and completeness thereof as
of the Effective Time. Moreover, we have assumed the absence of any change to
any of such instruments between the date thereof and the Effective Time.
We have assumed the authenticity of all documents submitted to
us as originals, the genuineness of all signatures, the legal capacity of all
natural persons and the conformity with original documents of all copies
submitted to us for our examination. We have further assumed that: (i) the
transactions related to the Merger or contemplated by the Agreement will be
consummated (A) in accordance with the Agreement and (B) as described in the
Prospectus; (ii) the Merger will qualify as a statutory merger under the laws of
the State of Pennsylvania and the State of Delaware; and (iii) as of the date
hereof, and as of the Effective Time (as if made as of the Effective Time), the
written statements made by executives of MotivePower and WABCO contained in the
MotivePower Tax Certificate and WABCO Tax Certificate, respectively, each dated
on or about the date hereof, are and will be accurate in all respects, and
neither MotivePower nor WABCO will have provided written notification prior to
the Effective Time that a statement made in the MotivePower Tax Certificate or
WABCO Tax Certificate, respectively, is no longer accurate.
In rendering the opinions expressed below, we have considered
the applicable provisions of the Internal Revenue Code of 1986, as amended (the
"Code"), Regulations promulgated thereunder by the United States Treasury
Department (the "Regulations"), pertinent judicial authorities, rulings and
interpretations of the Internal Revenue Service and such other authorities as we
have considered relevant. It should be noted that the Code, the Regulations and
such judicial decisions, rulings, administrative interpretations and other
authorities are subject to change at any time and, in some circumstances, with
retroactive effect; and any such change could affect the opinions stated herein.
Furthermore, the opinions expressed below might not be applicable to WABCO
shareholders who or which, for United States federal income tax purposes, are
nonresident alien individuals, foreign corporations, foreign partnerships,
foreign trusts or foreign estates, or who acquired their WABCO Common Stock
pursuant to the exercise of employee stock options or otherwise as compensation.
The opinions expressed below might not be applicable to WABCO's ESOP.
Based upon and subject to the foregoing, it is our opinion, as
counsel for WABCO, that, for federal income tax purposes:
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Westinghouse Air Brake Company
July 19, 1999
Page 3
(i) the Merger will constitute a "reorganization" within the
meaning of Section 368(a) of the Code, and WABCO and
MotivePower will each be a party to that reorganization within
the meaning of Section 368(b) of the Code;
(ii) no gain or loss will be recognized by MotivePower or
WABCO as a result of the Merger;
(iii) no gain or loss will be recognized by the stockholders
of WABCO upon the conversion of their shares of WABCO Common
Stock into shares of MotivePower Common Stock pursuant to the
Merger, except with respect to cash, if any, received in lieu
of fractional shares of MotivePower Common Stock;
(iv) the aggregate tax basis of the shares of MotivePower
Common Stock received in exchange for shares of WABCO Common
Stock pursuant to the Merger (including a fractional share of
MotivePower Common Stock for which cash is paid) will be the
same as the aggregate tax basis of such shares of WABCO Common
Stock;
(v) the holding period for shares of MotivePower Common Stock
received in exchange for shares of WABCO Common Stock pursuant
to the Merger will include the holder's holding period for
such shares of WABCO Common Stock, provided such shares of
WABCO Common Stock were held as capital assets by the holder
at the Effective Time; and
(vi) a stockholder of WABCO who receives cash in lieu of a
fractional share of MotivePower Common Stock will recognize
gain or loss equal to the difference, if any, between such
stockholder's basis in the fractional share (determined under
clause (iv) above) and the amount of cash received.
In addition, reference is made to the statement in the
Prospectus under the caption "The Merger Transaction -- Material United States
Federal Income Tax Consequences of the Merger," which have been prepared or
reviewed by us. It is our opinion that the statements made under the caption
"Material United States Federal Income Tax Consequences of the Merger," to the
extent constituting a discussion of matters of federal income tax law or legal
conclusions with respect thereto, are true and correct in all material respects.
Except as expressly set forth above, you have not requested,
and we do not herein express, any opinion concerning the tax consequences of, or
any other matters related to, the Merger.
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Westinghouse Air Brake Company
July 19, 1999
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We assume no obligation to update or supplement this letter to
reflect any facts or circumstances which may hereafter come to our attention
with respect to the opinions expressed above, including any changes in
applicable law which may hereafter occur.
This opinion is provided to you only, and without our prior
consent, may not be relied upon, used, circulated, quoted or otherwise referred
to in any manner by any person, firm, governmental authority or entity
whatsoever other than reliance thereon by you. Notwithstanding the foregoing, we
hereby consent to the reference to Xxxxxxxx & Xxxxx in the Prospectus and to the
filing of this opinion as an exhibit to the Registration Statement.
Very truly yours,
/s/ Xxxxxxxx & Xxxxx
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Xxxxxxxx & Xxxxx
