EXHIBIT 8.1
XXXXXXXX & XXXXXXXX LLP
ATTORNEYS AT LAW
000 XXXXXX XXXXXX
XXX XXXXXXXXX, XXXXXXXXXX 00000-2482
July 24, 1997
Progenitor, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Re: Amended and Restated Agreement and Plan of Reorganization dated as of
February 14, 1997, as further amended, by and between Progenitor,
Inc., MG Merger Sub Corp., and Mercator Genetics, Inc.
Ladies and Gentlemen:
We have acted as counsel to Progenitor, Inc., a Delaware corporation
"(Progenitor") in connection with the proposed merger (the "Reorganization")
of MG Merger Sub Corp., a Delaware corporation and a wholly-owned subsidiary
of Progenitor ("Merger Sub"), with and into Mercator Genetics, Inc., a
Delaware corporation ("Mercator") pursuant to an Amended and Restated
Agreement and Plan of Reorganization dated as of February 14, 1997, as
further amended (the "Reorganization Agreement"), among Progenitor, Merger
Sub and Mercator. The Reorganization and certain proposed transactions
incident thereto are described in the Registration Statement on Form S-4 (the
"Registration Statement") of Progenitor which includes the Information
Statement/Prospectus of Progenitor and Mercator (the "Information
Statement/Prospectus"). This opinion is being rendered pursuant to the
requirements of Item 21(a) of Form S-4 under the Securities Act of 1933, as
amended. Unless otherwise indicated, any capitalized terms used herein and
not otherwise defined have the meaning ascribed to them in the Information
Statement/Prospectus.
In connection with this opinion, we have examined and are familiar
with the Reorganization Agreement, the Registration Statement, and such other
presently existing documents, records and matters of law as we have deemed
necessary or appropriate for purposes of our opinion. In addition, we have
assumed (i) that the Reorganization will be consummated in the manner
contemplated by the Information Statement/Prospectus and in accordance with the
provisions of the Reorganization Agreement, (ii) the truth and accuracy of
the representations, warranties made by Progenitor and Mercator in the Merger
Agreement, and (iii) the truth and accuracy of the certificates of
representations to be provided to us by Progenitor, Mercator and certain
shareholders of Mercator.
XXXXXXXX & XXXXXXXX LLP
Progenitor, Inc.
July 24, 1997
Page Two
Based upon and subject to the foregoing, the discussion contained in
the Registration Statement under the caption "Certain Federal Income Tax
Consequences," subject to the limitations and qualifications described therein,
expresses our opinion as to the material Federal income tax consequences if the
Reorganization is effected in accordance with the terms of the Reorganization
Agreement. Because this opinion is being delivered prior to the Effective Time
of the Reorganization, it must be considered prospective and dependent upon
future events. There can be no assurance that changes in the law will not take
place which could affect the Federal income tax consequences of the
Reorganization or that contrary positions may not be taken by the Internal
Revenue Service.
This opinion is furnished to you solely for use in connection with the
Registration Statement. We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement. We also consent to the reference to our
firm name wherever appearing in the Registration Statement with respect to the
discussion of the material Federal income tax consequences of the
Reorganization, including the Information Statement/Prospectus constituting a
part thereof, and any amendment thereto. In giving this consent, we do not
thereby admit that we are in the category of persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the
rules and regulations of the Securities and Exchange Commission thereunder,
nor do we thereby admit that we are experts with respect to any part of such
Registration Statement within the meaning of the term "experts" as used in
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Xxxxxxxx & Xxxxxxxx LLP
