Exhibit 8.2
____________, 2000
SiteSmith, Inc.
3283 Scott Boulevard
Santa Clara, CA 95054
Ladies and Gentlemen:
We have acted as counsel for SiteSmith, Inc., a Delaware corporation
(the "Company"), in connection with the preparation and execution of the
Agreement and Plan of Merger dated as of October 6, 2000, by and among the
Company, Metromedia Fiber Network, Inc., a Delaware corporation ("Parent"), and
Acqueduct Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of Parent ("Merger Sub"). Pursuant to the Agreement, Merger Sub will
merge with and into the Company (the "Merger"), and the Company will become a
wholly owned subsidiary of Parent. Unless otherwise defined, 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").
You have requested our opinion regarding certain United States federal
income tax consequences of the Merger. In delivering this opinion, we have
reviewed and relied upon (without any independent investigation) the facts,
statements, descriptions and representations set forth in the Agreement
(including Exhibits), the registration statement on Form S-4 filed with the
Securities and Exchange Commission (which includes a joint proxy
statement-prospectus relating to the Merger) (the "Registration Statement"), and
such other documents pertaining to the Merger as we have deemed necessary or
appropriate. We have also relied upon (without any independent investigation)
certificates of officers of Parent, Merger Sub and the Company, respectively
(the "Officers' Certificates").
In connection with rendering this opinion, we have assumed (without any
independent investigation) that:
1. To the extent any expenses relating to the Merger (or the "plan of
reorganization" within the meaning of Treas. Reg. ss. 1.368-1(c) with respect to
the Merger) are funded directly or indirectly by a party other than the
incurring party, such expenses will be reorganization expenses within the
guidelines established in Revenue Ruling 73-54, 1973-1 C.B. 187.
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2. At all relevant times prior to and including the Effective Date, (i)
no outstanding indebtedness of the Company, Parent, or Merger Sub has or will
represent equity for tax purposes; (ii) no outstanding equity of the Company,
Parent, or Merger Sub has represented or will represent indebtedness for tax
purposes; (iii) no outstanding security, instrument, agreement or arrangement
that provides for, contains, or represents either a right to acquire the
Company's capital stock (or to share in the appreciation thereof) constitutes or
will constitute "stock" for purposes of Section 368(c) of the Code.
3. 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.
4. Any representation or statement referred to above made "to the
knowledge of," "to the best of the knowledge" 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.
5. All statements, descriptions and representations contained in any of
the documents referred to herein or otherwise made to us are true and correct in
all material respects and will continue to be true and correct in all material
respects as of the Effective Time and all other relevant times, and no actions
have been (or will be) taken which are inconsistent with such representations.
6. The Merger will be reported by Parent and the Company on their
respective federal income tax returns in a manner consistent with the opinion
set forth below.
7. The Merger will be consummated in accordance with the Agreement (and
without any waiver, breach or amendment of any of the provisions thereof) and
will be effective under the applicable state laws.
8. An opinion of counsel, substantially identical in substance to this
opinion, has been delivered to Parent from Paul, Weiss, Rifkind, Wharton &
Garrison, and will not be withdrawn prior to the Effective Date.
Based on our examination of the foregoing items and subject to the
assumptions, exceptions, limitations and qualifications set forth herein and in
the Registration Statement, we are of the opinion that if the Merger is
consummated in accordance with the provisions of the
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Agreement (and without any waiver, breach or amendment of any of the provisions
thereof) and the statements set forth in the Officers' Certificates are true and
correct as of the Effective Time:
(a) the Merger will be a "reorganization" for federal income tax
purposes within the meaning of Section 368(a) of the Code, and each of Parent,
Company and Merger Sub will be a party to that reorganization within the meaning
of Section 368(b) of the Code; and
(b) the disclosure of the material federal income tax consequences of
the Merger to Company stockholders in the Registration Statement under the
heading "Federal Income Tax Consequences to Holders of SiteSmith Capital Stock"
is correct in all material respects, subject to the limitations set forth
therein.
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, would 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.
This opinion concerning certain of the U.S. federal tax consequences of
the Merger is limited to the specific U.S. federal tax consequences presented
above, and does not address any other federal, state, local or foreign tax
consequences that may result from the Merger or any other transaction (including
any transaction undertaken in connection with the Merger).
No opinion is expressed as to any transaction other than the Merger as
described in the Agreement or 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 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.
We consent to the use of this opinion as an exhibit to the Registration
Statement, to references to this opinion in the Registration Statement and to
the use of our name in the Registration Statement under the heading "Federal
Income Tax Consequences to Holders of
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SiteSmith Capital Stock" therein. In giving this consent, we do not admit that
we are within the category of persons whose consent is required under Section 7
of the Securities Act of 1933, as amended, or the rules or regulations
promulgated thereunder. The filing of this opinion as an exhibit to the S-4
Registration Statement and the references to the opinion and our firm therein
are not intended to create liability under applicable state law to any person
other than the Company, our client.
Very truly yours,
VENTURE LAW GROUP
A Professional Corporation