[LETTERHEAD OF XXXXXXX XXXXXXX & XXXXXXXX LLP]
, 2000
ACT Networks, Inc.
00000 Xxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
This opinion is being delivered to you in connection with (i) the
Agreement and Plan of Merger and Reorganization, dated as of May 1, 2000 (the
"Agreement"), between Clarent Corporation, a Delaware corporation ("Parent"),
Copper Acquisition Corp., a Delaware corporation and a wholly owned subsidiary
of Parent ("Merger Sub"), and ACT Networks, Inc., a Delaware corporation
("Target"), and (ii) the preparation and filing with the Securities and Exchange
Commission of a Form S-4 Registration Statement relating to the Merger (the
"Registration Statement"). Pursuant to the Agreement, Merger Sub will merge
with and into Target (the "Merger"), and Target will become a wholly owned
subsidiary of Parent.
Except as otherwise provided, capitalized terms referred to herein
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 legal counsel to Target 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 schedules and exhibits thereto):
1. The Agreement;
2. The Registration Statement;
3. Those certain tax representation letters dated May __, 2000, and
delivered to us by Xxxxxx, Merger Sub and Target containing certain
representations of Parent, Merger Sub and Target (the "Tax Representation
Letters"); and
4. Such other instruments and documents related to Parent, Target,
Merger Sub and the Merger as we have deemed necessary or appropriate.
[LETTERHEAD OF XXXXXXX XXXXXXX & XXXXXXXX LLP]
Act Networks, Inc. , 2000
Page 2
In connection with rendering this opinion, we have assumed or obtained
representations (and are relying thereon, without any independent investigation
or review thereof) that:
A. That all representations, warranties and statements made or agreed
to by Xxxxxx, Merger Sub and Target, their management, employees, officers,
directors and stockholders in connection with the Merger, including, but not
limited to, those set forth in the Agreement (including exhibits thereto) and
the Tax Representations Letters delivered to us by Parent, Merger Sub and Target
are true at all relevant times;
B Original documents submitted to us (including signatures thereto)
are authentic, documents submitted to us as copies conform to the original
documents, and that all of these 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;
C. That all covenants contained in the merger agreement (including
exhibits thereto) and the Tax Representations Letters are performed without
waiver or breach of any material provision of these covenants;
D. The Merger will be consummated in accordance with the Agreement
without any waiver or breach of any material provision thereof, and the Merger
will be effective under applicable state law;
E. That the merger will be reported by Xxxxxx, Merger Sub and Target
on their respective United States federal income tax return in a manner
consistent with this opinion;
F. That any representation or statement made "to the knowledge" or
similarly qualified is correct without qualification; and
G. That the opinion dated May __, 2000, rendered by Xxxxxx Xxxxxxx
LLP to Parent pursuant to the Reorganization Agreement has been delivered and
has not been withdrawn.
Based on our examination of the foregoing items and subject to the
assumptions, exceptions, limitations and qualifications set forth herein, we are
of the opinion that the statements regarding United States federal income tax
consequences set forth in the Registration Statement under the heading "Material
U.S. Federal Income Tax Consequences," insofar as they constitute statements of
law or legal conclusions, are correct in all material respects. We express no
opinion as to any federal, state or local, foreign or other tax consequences,
other than as set forth in the Registration Statement under the heading
"Material U.S. Federal Income Tax Consequences."
[LETTERHEAD OF XXXXXXX XXXXXXX & XXXXXXXX LLP]
Act Networks, Inc. , 2000
Page 3
In addition to the assumptions and representations described 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 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
successfully assert a contrary position. Furthermore, no assurance can be given
that future legislative, judicial or administrative changes, on either a
prospective or retroactive basis, will 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
federal income tax laws.
(2) No opinion is expressed as to any transaction other than the
Merger (whether or not undertaken in connection with the Merger) or as to any
transaction whatsoever, including the Merger, if all the transactions described
in the Agreement are not consummated in accordance with the terms of such
Agreement and without waiver or breach of any material provision thereof or if
all of the statements, representations, warranties 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.
This opinion is rendered to you solely in connection with the filing
of the Registration Statement. We hereby consent to the filing of this opinion
as an exhibit to the Registration Statement. We also consent to the references
to our firm name wherever appearing in the Registration Statement with respect
to the discussion of the federal income tax consequences of the Merger,
including any amendments to the Registration Statement. This opinion may not be
relied upon for any other purpose, and may not be made available to any other
person, without our prior written consent.
Very truly yours,
XXXXXXX, XXXXXXX & XXXXXXXX LLP
