Exhibit 8.1
[Coudert Brothers LLP]
April 18, 2002
Collateral Therapeutics, Inc.
00000 Xx Xxxxxx Xxxx
Xxx Xxxxx, XX 00000
Ladies and Gentlemen:
We refer to the Agreement and Plan of Merger dated as of March 19, 2002
(the "Agreement"), among Schering Aktiengesellschaft, a stock corporation
organized under the laws of the Federal Republic of Germany ("Parent"), European
Acquisition Company, a Delaware corporation and a wholly owned subsidiary of
Parent ("Sub"), and Collateral Therapeutics, Inc., a Delaware corporation (the
"Company"), whereby Sub will merge with and into the Company (the "Merger") with
the Company becoming the surviving corporation, on the terms and conditions
therein set forth, the time at which the Merger becomes effective being
hereinafter referred to as the "Effective Time." Capitalized terms used but not
defined herein have the meanings specified in the Agreement.
As provided in the Agreement, at the Effective Time, by reason of the
Merger: (1) each then outstanding share of capital stock of Sub will be
converted into and become one fully paid and nonassessable share of Company
Common Stock, (2) each share of Company Common Stock that is owned by the
Company, Parent or Sub will automatically be canceled and will cease to be
outstanding, and no Parent ADSs or other consideration will be delivered in
exchange therefor, (3) each share of Company Common Stock that is owned by SBI
will not be so canceled and will remain outstanding as one fully paid and
nonassessable share of Company Common Stock, (4) each then outstanding share of
Company Common Stock (other than shares of Company Common Stock canceled or to
remain outstanding as described in clauses (2) and (3) above) will be converted
into the right to receive 0.1847 American depositary shares of Parent (each a
"Parent ADS"), with cash in lieu of fractional shares of Parent ADSs.
Accordingly, immediately following the Merger, the former holders of Company
Common Stock (other than Company Common Stock described in clauses (2) and (3)
above) will hold Parent ADSs issued in the Merger (and cash in lieu of
fractional
Collateral Therapeutics, Inc.
April 18, 2002
Parent ADSs), and the Company, as the surviving corporation, will be
a wholly-owned subsidiary of Parent. The Merger and the Agreement are more fully
described in Parent's Registration Statement on Form F-4 (the "Registration
Statement") which is being filed by Parent with the Securities and Exchange
Commission pursuant to the Securities Act of 1933, as amended. The Registration
Statement includes the Prospectus/Proxy Statement (the "Prospectus/Proxy
Statement") of Parent and the Company.
In rendering the opinions expressed below, we have relied upon the
accuracy and completeness of the facts, information and representations, and the
completeness of the covenants, contained in the Agreement, the Prospectus/Proxy
Statement and such other documents as we have deemed relevant and necessary.
Such opinions are conditioned, among other things, not only upon the accuracy
and completeness thereof as of the date hereof, but also the continuing accuracy
and completeness thereof as of the Effective Time. Moreover, we have assumed the
absence of any change to any of such instruments between the date hereof and the
Effective Time.
We have assumed the authenticity of all documents submitted to us as
originals, the genuineness of all signatures, the legal capacity of all natural
persons and the conformity with original documents of all copies submitted to us
for our examination. We have also assumed: (1) that the transactions related to
the Merger or contemplated by the Agreement will be consummated (A) in
accordance with the Agreement and (B) as described in the Prospectus/Proxy
Statement and (2) the accuracy as of the date hereof, and the continuing
accuracy as of the Effective Time, of the written statements made by executives
of Parent and the Company contained in the Parent Tax Representation Letter and
the Company Tax Representation Letter, respectively.
In rendering the opinions expressed below, we have considered the
applicable provisions of the Internal Revenue Code of 1986, as amended (the
"Code"), regulations promulgated thereunder by the United States Treasury
Department (the "Regulations"), pertinent judicial authorities, rulings of the
Internal Revenue Service and such other authorities as we have considered
relevant. It should be noted that the Code, the Regulations and such judicial
authorities, rulings and other authorities are subject to change at any time, in
some circumstances with retroactive effect, and any such change could affect the
opinions stated herein.
Based upon and subject to the foregoing, it is our opinion, as counsel
for the Company, that for U.S. federal income tax purposes:
(1) The Merger will constitute a "reorganization" within the
meaning of Section 368(a) of the Code, and the Company, Sub and Parent each will
be a party to such reorganization within the meaning of Section 368(b) of the
Code.
(2) No gain or loss will be recognized by Parent or the
Company as a result of the Merger.
(3) No gain or loss will be recognized by stockholders of the
Company who exchange their Company Common Stock solely for Parent ADSs pursuant
to the Merger, except
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Collateral Therapeutics, Inc.
April 18, 2002
with respect to (i) cash, if any, received in lieu of fractional Parent ADSs and
(ii) stockholders of the Company who are not Eligible Company Stockholders.
Except as expressly set forth in paragraphs (1) through (3), inclusive,
you have not requested, and we do not herein express, any opinion concerning the
tax consequences of, or any other matters related to, the Merger.
The opinions set forth above may not be applicable to stockholders of
the Company that received their Company Common Stock as compensation or that are
foreign corporations, foreign partnerships or other foreign entities or
individuals who are not citizens or residents of the United States.
We assume no obligation to update or supplement this letter to reflect
any facts or circumstances which may hereafter come to our attention with
respect to the opinions expressed above, including any changes in applicable law
which may hereafter occur.
We hereby consent to the filing of this letter as an Exhibit to the
Registration Statement and to all references to our Firm included in or made a
part of the Registration Statement.
Very truly yours,
/s/ Coudert Brothers LLP
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