Exhibit 8.2
[Letterhead of Dechert]
April 2, 2002
Board of Directors
Xxxxxx International Inc.
Xxx Xxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Re: Agreement and Plan of Merger, dated as of February 26, 2002 (the
"Agreement"), by and among Fusion Medical Technologies, Inc., a Delaware
corporation ("Company"), Xxxxxx International Inc., a Delaware corporation
("Parent") and HB2002 Corporation, a Delaware corporation and direct
wholly-owned subsidiary of Parent ("Merger Sub").
Ladies and Gentlemen:
We have acted as counsel to Parent in connection with the proposed merger
(the "Merger") of Merger Sub with and into Company, pursuant to the Agreement
and Plan of Merger dated as of February 26, 2002, among Parent, Merger Sub, and
Company (the "Merger Agreement"). Except as otherwise provided, capitalized
terms used but not defined herein shall have the meanings set forth in the
Merger Agreement.
You have asked for our opinion concerning certain federal income tax
consequences of the Merger in connection with the filing with the Securities and
Exchange Commission (the "SEC") under the Securities Act of 1933, as amended
(the "Securities Act") of a registration statement on Form S-4 (the
"Registration Statement") containing the Proxy Statement/Prospectus for the
Merger.
Pursuant to the Merger Agreement, Merger Sub will be merged with and into
the Company, and each share of Company Common Stock will be exchanged for a
fraction, determined in accordance with Section 1.2(c) of the Merger Agreement,
of a Parent Share. Only whole Parent Shares will be issued in the Merger. Each
holder of Company Common Stock who would otherwise be entitled to a fraction of
a Parent Share will receive, in lieu thereof, an amount of cash determined in
the manner set forth in Section 1.3 of the Merger Agreement.
As set forth in Section 1.9 of the Merger Agreement, Parent intends to
cause the Surviving Corporation to merge into a wholly-owned first-tier
subsidiary of Parent ("Parent Sub") following the Merger (the "Follow-on
Merger," and together with the Merger, the "Mergers"). Pursuant to the Follow-on
Merger, all of the outstanding stock of
Board of Directors
Xxxxxx International Inc.
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the Surviving Corporation would be cancelled and Parent Sub would remain a
wholly-owned first-tier subsidiary of Parent.
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 exhibits and
schedules attached thereto):
1. The Merger Agreement;
2. The Proxy Statement/Prospectus for the Merger included in the
Registration Statement;
3. Those certain tax representation letters, dated on or about the
date hereof, delivered to us by Xxxxxx, Merger Sub and Company containing
certain representations of Parent, Merger Sub and Company (the "Tax
Representation Letters"); and
4. Such other instruments and documents related to the formation,
organization and operation of Parent, Merger Sub, Subsidiary and Company,
and related to the consummation of the Mergers and the other transactions
contemplated by the Merger Agreement as we have deemed necessary or
appropriate.
In connection with rendering this opinion, we have assumed (without any
independent investigation or review thereof) that:
1. Original documents submitted to us (including signatures thereto)
are authentic; documents submitted to us as copies conform to the original
documents; and that all such documents have been (or will be by the
Effective Time) duly and validly executed and delivered where due execution
and delivery are a prerequisite to the effectiveness thereof;
2. All representations, warranties and statements made or agreed to by
Parent, Merger Sub and Company, their management, employees, officers,
directors and stockholders in connection with the Mergers, including, but
not limited to, those set forth in the Merger Agreement (including the
exhibits thereto) and the Tax Representation Letters are true, correct and
complete at all relevant times;
3. All covenants contained in the Merger Agreement (including exhibits
thereto) and the Tax Representation Letters have been or will be performed
without waiver or breach of any material provision thereof;
4. Any representations or statement made "to the best of knowledge" or
similarly qualified is correct without such qualification; and
5. The Merger and, if it occurs, the Follow-On Merger will be reported
by Xxxxxx, Merger Sub and Company on their respective federal income tax
returns in a manner consistent with the opinion set forth below.
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Board of Directors
Xxxxxx International Inc.
Page 3
We have also assumed that the transactions contemplated by the Merger
Agreement will be consummated in accordance therewith and as described in the
Proxy Statement/Prospectus, and that the Merger and Follow-on Merger will each
qualify as a statutory merger under applicable state laws.
Based on our examination of the foregoing items and subject to the
limitations, qualifications, assumptions and caveats set forth herein, we are of
the opinion that (i) the Merger, together with the Follow-on Merger, will
constitute a "reorganization" for United States federal income tax purposes
within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as
amended, (the "Code") if the Mergers are treated as a single integrated
transaction and (ii) if the Follow-on Merger is not consummated or is not
treated as part of an integrated transaction with the Merger, the Merger will
constitute a "reorganization" within the meaning of Code Section 368(a).
Furthermore, subject to the limitations therein, we are of the opinion that
the discussion contained in the Proxy Statement/Prospectus under the caption
"The Merger--Material U.S. Federal Income Tax Consequences" is an accurate
summary of the material U.S. federal income tax consequences of the Merger to
holders of common stock of the Company under currently applicable law.
This opinion does not address the various state, local or foreign tax
consequences that may result from the Merger or the other transactions
contemplated by the Merger Agreement, including the Follow-on Merger. In
addition, no opinion is expressed as to any federal income tax consequence of
the Merger or other transactions contemplated by the Merger Agreement, including
the Follow-on Merger, except as specifically set forth herein, and this opinion
may not be relied upon except with respect to the consequences specifically
discussed herein.
No opinion is expressed as to any transaction other than the Merger as
described in the Merger Agreement, the Follow-on Merger, or as to any other
transaction whatsoever, if all of the transactions described in the Merger
Agreement are not consummated in accordance with the terms of the Merger
Agreement and without waiver of any material provision thereof. To the extent
that any of the representations, warranties, statements and assumptions material
to our opinion and upon which we have relied are not accurate and complete in
all material respects at all relevant times, our opinion could be adversely
affected and should not be relied upon.
This opinion only represents our best judgment as to the federal income tax
consequences of the transaction and is not binding on the Internal Revenue
Service or any court of law, tribunal, administrative agency or other
governmental body. The conclusions are based on the Code, existing judicial
decisions, administrative regulations and published rulings, all of which are
subject to change, possibly with retroactive effect. No assurance can be given
that future legislative, judicial or administrative changes or interpretations
would not adversely affect the accuracy of the conclusions stated herein.
Nevertheless, by rendering this opinion, we undertake no responsibility to
advise you of any new developments in the application or interpretation of the
federal income tax laws.
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Board of Directors
Xxxxxx International Inc.
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Except as set forth below, this opinion is intended for your benefit, is
not to be quoted, circulated or otherwise referred to without our express
permission, and may not be relied upon or utilized for any other purpose or by
any other person and may not be made available to any other person without our
prior written consent. We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and to the reference to our firm under
"Legal Matters" and "Material U.S. Federal Income Tax Consequences" in the Proxy
Statement/Prospectus. In giving such 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 or the rules and regulations of the SEC.
Very truly yours,
/s/ Dechert
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