EXHIBIT 8.4
February 1, 1999
PLATINUM technology International, inc.
0000 X. Xxxxxx Xxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Board of Directors
Ladies and Gentlemen:
You have requested we render this opinion concerning certain matters of Israeli
tax law in connection with the Agreement dated as of August 13, 1998 (the
"Agreement"), between PLATINUM technology International, inc., a corporation
organized and existing under the laws of the State of Delaware (the "Buyer"),
and Memco Software, Ltd., a corporation organized under the laws of the State of
Israel (the "Company"), and the Arrangement to be entered into between the
Company and its shareholders (the "Arrangement") pursuant to the Agreement, and
related documents and agreements referenced in the Agreement (together with the
Agreement, the "Merger Agreements").
Except as otherwise provided, capitalized terms referred to herein have the
meanings set forth in the Merger Agreements.
We have acted as legal counsel to Buyer in connection with the Arrangement. As
such, and for the purpose of rendering this opinion, we have examined (or will
examine on or prior to the Effective Time) and are relying (or will rely) 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 schedules and
exhibits thereto):
1. The Merger Agreements;
2. Representations made to us by the Company, including those representations
contained in that certain Company Tax Certificate dated February 1, 1999;
3. The Proxy Statement prepared in connection with the Arrangement;
4. The Registration Statement on Form S-4 in connection with the Arrangement;
and
5. Such other instruments and documents related to the formation, organization
and operation of the Company and the Buyer and the transactions contemplated
thereby as we have deemed necessary or appropriate.
In connection with rendering this opinion, we have assumed or obtained
representations (and are relying thereon, without any independent investigation
or review thereof) that:
1. Original documents (including signatures) are authentic; documents submitted
to us as copies conform to the original documents, and there has been (or will
be by the Effective Time) due execution and delivery of all documents where due
execution and delivery are prerequisites to the effectiveness thereof;
2. Any representation or statement referred to above made "to the knowledge of"
or otherwise similarly qualified is correct without such qualification;
3. The Arrangement will be consummated pursuant to the Merger Agreements in
accordance with the laws of the State of Israel;
4. The Company qualifies as an "industrial company" as such term is defined in
the Law for the Encouragement of Industry (Taxes), 1969, of the State of Israel;
and
5. The Ordinary Shares of the Company have been listed for trading on the
NASDAQ National Market since October 1996, and will remain so listed through the
Effective Date.
We have reviewed the section of the prospectus entitled "Certain Israeli Tax
Consequences of the Arrangement." Based on our examination of the foregoing
items and subject to the assumptions, exceptions, limitations and qualifications
set forth herein, it is our opinion, as counsel for Buyer, that such section of
the prospectus constitutes the material tax consequences of the Arrangement
under Israeli law.
In addition to the assumptions set forth above, this opinion is subject to the
exceptions, limitations and qualifications set forth below:
1. This opinion represents and is based upon our best judgment regarding the
application of the laws of the State of Israel and relevant judicial decisions.
Our opinion is not binding upon the Income Tax Authority of the State of Israel
or the courts, and the Income Tax Authority is not precluded from asserting 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 opinion
expressed herein. Nevertheless, we undertake no responsibility to advise you of
any new developments in the application or interpretation of the Israeli income
tax laws.
2. Our opinion concerning certain Israeli tax consequences of the Arrangement
is limited to the specific Israeli tax consequences presented above. No opinion
is expressed as to any transaction other than the Arrangement, including any
transaction undertaken in connection with the Arrangement. In addition, this
opinion does not address any other federal, estate, gift, state, local or
foreign tax consequences that may result from the Arrangement. In particular,
we express no opinion regarding:
(a) whether and the extent to which any Company stockholder who has provided or
will provide services to the Company or Buyer will have compensation income
under
any provision of the Code;
(b) the effects of such compensation income, including, but not limited to, the
effect upon the basis and holding period of the Buyer stock received by any such
stockholder in the Reorganization;
(c) the tax consequences of the Arrangement on persons who are "dealers" in
securities under Israeli law or otherwise deemed to have received ordinary
income under Israeli law in connection with the Arrangement; and
(d) the tax consequences of the Arrangement on persons who held Ordinary Shares
of the Company prior to the initial public offering of the Company in October
1996.
3. No opinion is expressed if the Arrangement is not consummated in accordance
with the terms of the Merger Agreement and without waiver or breach of any
material provision thereof or if all of the representations, warranties,
statements and assumptions upon which we relied are not true and accurate at all
relevant times. In the event 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.
4. No ruling has been or will be requested from the Income Tax Authority of the
State of Israel concerning the Israeli income tax consequences of the
Arrangement on shareholders who purchased their Ordinary Shares of the Company
since the date of the initial public offering of the Company. In reviewing this
opinion, you should be aware that the opinion set forth above represents our
conclusions regarding the application of existing Israeli income tax law to the
instant transaction. If the facts vary from those relied upon (including if any
representation, covenant, warranty or assumption upon which we have relied is
inaccurate, incomplete, breached or ineffective), our opinion contained herein
could be inapplicable. You should be aware that an opinion of counsel
represents only counsel's best legal judgment, and has no binding effect or
official status of any kind, and that no assurance can be given that contrary
positions will not be taken by the Income Tax Authority or that a court
considering the issues would not hold otherwise.
5. We understand that counsel for the Company, Meitar, Liquornik, Geva & Co.,
has rendered a tax opinion substantially similar to this opinion.
6. This opinion is being delivered solely for your benefit. This opinion may
not be relied upon or utilized by any other person or entity, and may not be
made available to any other person or entity, without our prior written consent.
We do, however, consent to the use of our name in the Registration Statement
wherever it appears.
Very truly yours,
/s/ XXXXXX, FOX & XXXXXX
