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Exhibit 8.02
[Form of Fenwick & West LLP Tax Opinion]
, 2000
Pogo.com Inc.
300 California Street, Suite 800
San Francisco, CA 94104
Attention: Board of Directors
Re: Tax Opinion for the Merger Transaction Involving
At Home Corporation and Pogo.com Inc.
Ladies and Gentlemen:
We have been requested to render this opinion concerning certain matters of
U.S. federal income tax law in connection with the proposed merger (the
"Merger") involving At Home Corporation, a corporation organized and existing
under the laws of the State of Delaware ("Excite@Home"), Pogo Acquisition
Corp., a wholly-owned first tier subsidiary of Excite@Home and a Delaware
corporation ("Sub"), and Pogo.com Inc., a corporation organized and existing
under the laws of the State of Delaware ("Pogo").
The Merger is structured as a statutory merger of Pogo with and into Sub,
with Sub surviving the Merger, all pursuant to the applicable corporate laws of
the State of Delaware and in accordance with the Agreement and Plan of
Reorganization by and among Excite@Home, Sub, Pogo and Erick Hachenburg, the
representative of the stockholders of Pogo, dated as of August 30, 2000 and the
exhibits thereto (collectively the "Agreement"). Except as otherwise indicated,
capitalized terms used 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 Pogo 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), among others:
1. the Agreement;
2. a Tax Certificate of Excite@Home and Sub dated , 2000, signed
by an authorized officer of each of Excite@Home and Sub and delivered to us
from Excite@Home and Sub and incorporated herein by reference, a copy of which
is attached hereto as Attachment 1; and
3. a Tax Certificate of Pogo dated , 2000, signed by an
authorized officer of Pogo and delivered to us from Pogo and incorporated
herein by reference, a copy of which is attached hereto as Attachment 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:
(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 of the Merger) due execution and
delivery of all documents where due execution and delivery are
prerequisites to the effectiveness thereof;
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(2) any representation or statement referred to above made "to the
knowledge of" or "to the belief of" or otherwise similarly qualified is
correct without such qualification, and all statements and representations,
whether or not qualified are true and will remain true through the
Effective Time;
(3) the Merger will be consummated pursuant to the Agreement and will be
effective under the laws of the State of Delaware;
(4) no Pogo Stockholder has guaranteed or will guarantee any Pogo
indebtedness outstanding during the period immediately prior to the Merger,
and at all relevant times prior to and including the Effective Time, (a) no
outstanding indebtedness of Excite@Home, Pogo or Sub has represented or
will represent equity for tax purposes; (b) no outstanding equity of
Excite@Home, Pogo or Sub has represented or will represent indebtedness for
tax purposes; (c) no outstanding security, instrument, agreement or
arrangement that provides for, contains or represents either a right to
acquire Pogo capital stock (or to share in the appreciation thereof)
constitutes or will constitute "stock" for purposes of Section 368(c) of
the Code; and
(5) Excite@Home, Sub and Pogo will report the Merger on their respective
U.S. federal income tax returns in a manner consistent with the opinion set
forth below and will comply with all reporting obligations set forth in the
Code and the Treasury Regulations promulgated thereunder.
In addition to the above, our opinion is conditioned on the delivery of an
opinion of counsel, substantially identical to this opinion, to Pogo from
O'Melveny & Myers LLP, and that such opinion will not be withdrawn prior to the
Effective Time.
Based on the foregoing documents, materials, assumptions and information,
and subject to the qualifications and assumptions set forth herein, we are of
the opinion that, if the Merger is consummated in accordance with the
provisions of the Agreement and the documents referred to therein (and without
any waiver, breach or amendment of any of the provisions thereof), the Merger
will be a "reorganization" for federal income tax purposes within the meaning
of Section 368(a) of the Code and Excite@Home, Pogo and Sub each will be a
"party to the reorganization" within the meaning of Section 368(b) of the Code.
Our opinions set forth above are based on the existing provisions of the
Code, Treasury Regulations (including Temporary Treasury Regulations)
promulgated under the Code, published Revenue Rulings, Revenue Procedures and
other announcements of the Internal Revenue Service (the "Service") and
existing court decisions, any of which could be changed at any time. Any such
changes might be retroactive with respect to transactions entered into prior to
the date of such changes and could significantly modify the opinions set forth
above. Nevertheless, we undertake no responsibility to advise you of any
subsequent developments in the application, operation or interpretation of the
U.S. federal income tax laws.
Our opinions concerning certain of the U.S. federal tax consequences of the
Merger are limited to the specific U.S. federal tax consequences presented
above. No opinion is expressed as to any transaction other than the Merger,
including any transaction undertaken in connection with the Merger. In
addition, this opinion does not address any estate, gift, state, local or
foreign tax consequences that may result from the Merger. In particular, we
express no opinion regarding: (i) the amount, existence or availability after
the Merger, of any of the U.S. federal income tax attributes of Excite@Home,
Pogo or Sub; (ii) any transaction in which Pogo Common Stock is acquired or
Excite@Home Common Stock is disposed other than pursuant to the Merger; (iii)
the potential application of the "disqualifying disposition" rules of Section
421 of the Code to dispositions of Pogo Common Stock; (iv) the effects of the
Merger and Excite@Home's assumption of outstanding options to acquire Pogo
stock on the holders of such options under any Pogo employee stock option or
stock purchase plan, respectively; (v) the effects of the Merger on any Pogo
stock acquired by the holder subject to the provision of Section 83(a) of the
Code; (vi) the effects of the Merger on any payment which is or may be subject
to the provisions of Section 280G of the Code; (vii) the application of the
collapsible corporation provisions of Section 341 of the Code to Excite@Home,
Pogo or Sub as a result of the Merger; (viii) the application of the
alternative minimum tax provisions contained in the Code; (ix) the effects of
the Merger on
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any Pogo stock acquired or held as part of a "straddle," "conversion
transaction," "hedging transaction" or other risk reduction transaction; and
(x) any special tax consequences applicable to insurance companies, securities
dealers, financial institutions, tax-exempt organizations or foreign persons.
No ruling has been or will be requested from the Service concerning the U.S.
federal income tax consequences of the Merger. In reviewing this opinion, you
should be aware that the opinion set forth above represents our conclusions
regarding the application of existing U.S. federal income tax law to the
instant transaction. If the facts vary from those relied upon (including if any
representations, covenant, warranty or assumption upon which we have relied is
inaccurate, incomplete, breached or ineffective), our opinions 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 may not be taken by the Service or that a court considering the
issues would not hold otherwise.
This opinion is being delivered solely for the purpose of satisfying the
condition set forth in Section 8.3(c) of the Agreement, and solely for use in
connection with the Merger. This opinion may not otherwise be relied upon or
utilized for any other purpose or by any other person or entity, and may not be
made available to any other person or entity, without our prior written
consent.
Very truly yours,
Fenwick & West LLP
A Limited Liability Partnership
Including Professional Corporations
