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[BROBECK PHLEGER & HARRISON LLP LETTERHEAD]
Exhibit 8.2
SPEAR STREET TOWER
ONE MARKET
SAN FRANCISCO
TELEPHONE: (415) 442-0900 CALIFORNIA 94105
FACSIMILE: (415) 442-1010 www.brobeck.com
October 10, 2000
Cobalt Networks, Inc.
555 Ellis Street
Mountain View, CA 94043
Ladies and Gentlemen:
This opinion is being delivered to you in connection with (i) the Agreement
and Plan of Merger and Reorganization (the "Agreement") dated as of September
18, 2000, between Sun Microsystems, Inc., a Delaware corporation ("Parent"),
Azure Acquisition Corporation, a Delaware corporation and a wholly owned
subsidiary of Parent ("Merger Sub"), and Cobalt 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; and
3. Such other instruments and documents related to Parent, Target, Merger
Sub and the Merger 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:
A. Original documents submitted to us (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; and
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Cobalt Networks, Inc. October 10, 2000
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B. 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.
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
Federal Income Tax Consequences," insofar as they constitute statements of law
or legal conclusions, are correct in all material respects.
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) This opinion is based on the assumption that the Merger will be
consummated in accordance with the terms of such Agreement (and without waiver
or breach of any material provision thereof) and that all of the statements,
representations and warranties upon which we have relied are true and accurate
at all relevant times. In the event any one of such statements, representations
or warranties 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,
BROBECK, PHLEGER & HARRISON LLP
/s/ Brobeck, Phleger & Harrison LLP
