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EXHIBIT 8.2
[XXXXXX, XXXXXXX & XXXXXX, LLP LETTERHEAD]
___________, 2001
Xxxxxxxx.Xxx Software, Inc.
0000 Xxxxxxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Re: Agreement and Plan of Merger by and among Verso Technologies, Inc.
("Parent"), Titan Acquiring Sub, Inc. ("Titan Acquiring Sub") and
Xxxxxxxx.Xxx Software, Inc. ("Xxxxxxxx.Xxx")
Ladies and Gentlemen:
You have requested our opinion regarding certain federal income tax consequences
of the proposed merger (the "Merger") of Titan Acquiring Sub with and into
Xxxxxxxx.Xxx pursuant to which the Shareholders of Xxxxxxxx.Xxx (the
"Shareholders") will receive shares of stock of Parent, all as described in that
certain Agreement and Plan of Merger dated as of May 4, 2001 among Parent,
Xxxxxxxx.Xxx and Titan Acquiring Sub, as amended by that certain First Amendment
to Agreement and Plan of Merger, dated as of June 1, 2001 by and among Parent,
Titan Acquiring Sub and Xxxxxxxx.Xxx (collectively, the "Merger Agreement"). The
Merger and certain transactions incident thereto are described in the
Registration Statement on Form S-4 (the "Registration Statement") of Parent
which includes the proxy statement of Xxxxxxxx.Xxx.
Except as otherwise provided herein, capitalized terms referred to herein have
the meanings set forth in the Merger Agreement. All section references, unless
otherwise indicated, are to the Internal Revenue Code of 1986, as amended (the
"Code").
We have acted as legal counsel to Xxxxxxxx.Xxx in connection with the Merger. As
such, and for purposes of rendering this opinion, we have examined and are
relying upon 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 Agreement (including Exhibits and Schedules
thereto);
2. The Registration Statement;
3. Written representation Letters made to us by Xxxxxx, Titan
Acquiring Sub and Xxxxxxxx.Xxx; and
4. Such other documents, instruments and certificates we have
deemed necessary or appropriate for purposes of rendering the
opinions contained herein.
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In connection with the rendering of 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 effectiveness
thereof.
2. Any representation or statement referred to above made "to the
knowledge of" or otherwise similarly qualified is correct
without such qualification. As to all matters in which a
person or entity making a representation referred to above has
represented that such person or entity either is not a party
to, does not have, or is not aware of, any plan, intention,
understanding or agreement, there is in fact no such plan,
intention, understanding or agreement.
3. The Merger will be consummated pursuant to the Merger
Agreement and will be effective under applicable state law.
4. After the Merger, Xxxxxxxx.Xxx will hold "substantially all"
of its and Titan Acquiring Sub's properties within the meaning
of Section 368(a)(2)(E)(i) of the Code and the regulations
promulgated thereunder.
5. To the extent any expenses relating to the Merger (or the
"plan of reorganization" within the meaning of Treas. Reg.
Section 1.368-1(c) with respect to the Merger) are funded
directly or indirectly by a party other than the party
incurring such expenses, such expenses will be within the
guidelines established in Revenue Ruling 73-54, 1973-1 C.B.
187.
6. No outstanding indebtedness of Xxxxxxxx.Xxx, Titan Acquiring
Sub or Parent has or will represent equity for tax purposes
(including, without limitation, any loans from Parent to
Xxxxxxxx.Xxx); no outstanding equity of Parent, Titan
Acquiring Sub or Xxxxxxxx.Xxx has represented or will
represent indebtedness for tax purposes; and no outstanding
security, instrument, agreement or arrangement that provides
for, contains, or represents either a right to acquire
Xxxxxxxx.Xxx's capital stock or to share in the appreciation
thereof constitutes or will constitute "stock" for purposes of
Section 368(c) of the Code.
7. The Tax Opinion of Xxxxxx & Xxxxxx, LLP has been concurrently
delivered and not withdrawn.
Based on the foregoing and provided that the transaction is consummated in
accordance with the terms and conditions of the Merger Agreement, it is our
opinion that for federal income tax purposes:
1. The merger of Titan Acquiring Sub into and with Xxxxxxxx.Xxx,
with Xxxxxxxx.Xxx being the surviving corporation in such
merger in exchange for
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__________, 2001
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shares of common stock in Parent, will constitute a
"reorganization" within the meaning of Sections 368(a)(1)(A)
and 368(a)(2)(E) of the Code.
2. No gain or loss will be recognized by Parent or by
Xxxxxxxx.Xxx as a result of the Merger.
3. No gain or loss will be recognized by the Shareholders upon
their receipt of shares of Parent Common Stock (including any
fractional share of Parent Common Stock that any such
Shareholder may be deemed to receive) in exchange for the
shares of Xxxxxxxx.Xxx Common Stock.
4. The basis of the shares of Parent Common Stock received by the
Shareholders (including any fractional share of Parent Common
Stock that any such Shareholder may be deemed to receive) will
be the same as the basis of the shares of Xxxxxxxx.Xxx Common
Stock in the hands of the Shareholders surrendered in exchange
therefore.
5. The holding period of the shares of Parent Common Stock
received by the Shareholders will include the period during
which the shares of the Xxxxxxxx.Xxx Common Stock surrendered
in exchange therefore were held.
6. Any cash received by a Shareholder in lieu of a fractional
share of Parent Common Stock will be treated under Section 302
of the Code as having been received by such Shareholder in
exchange for such fractional share, and such Shareholder
generally will recognize capital gain or loss in such exchange
equal to the difference between the cash received and such
Shareholder's basis allocable to the fractional share.
We note the following limitations as to the scope of this opinion.
1. This opinion represents and is based upon our best judgment
regarding the application of 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 the Internal Revenue Service 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 federal income tax laws.
2. This opinion addresses only the specific federal income tax
consequences set forth above, and does not address any other
federal, state, local or foreign tax consequences that may
result from the Merger or any other transaction. In
particular, we express no opinion regarding (i) whether and to
what extent any Shareholder who has provided or will provide
services to the Parent,
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Xxxxxxxx.Xxx or Titan Acquiring Sub will have compensation
income under any provision of the Code; (ii) the effects of
such compensation income, including, but not limited to, the
effect upon the basis and holding period of any Parent Common
Stock received by any such shareholder in the Merger; (iii)
the potential application of the "golden parachute" provisions
(Sections 280G, 312(v)(2) and 4999) of the Code, the
alternative minimum tax provisions (Sections 55, 56 and 57) of
the Code or Sections 108, 305, 306, 357, 424 and 708 of the
Code, or the regulations promulgated thereunder; (iv) other
potential tax consequences of the Merger to Parent or Titan
Acquiring Sub, including, without limitation, the survival
and/or availability, after the Merger, of any of the federal
income tax attributes or elections of Xxxxxxxx.Xxx, Parent or
Titan Acquiring Sub, after application of any provision of the
Code; (v) the basis of any equity interest in Xxxxxxxx.Xxx
acquired by Parent in the Merger; and (vi) the tax
consequences of the Merger (including the opinions set forth
above) as applied to Shareholders who do not hold their shares
of Xxxxxxxx.Xxx Common Stock as a capital asset, including,
but not limited to, dealers in securities, corporate
shareholders subject to the alternative minimum tax, foreign
persons, and holders of shares acquired upon exercise of stock
options or in other compensatory transactions.
3. 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 such 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 have
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 may be adversely affected and may
not be relied upon.
This opinion letter is intended only for your use and benefit and may not be
relied upon by any other persons without our prior written consent.
Sincerely,
XXXXXX, XXXXXXX & XXXXXX, LLP
