Exhibit 8.2
[Xxxxxx Xxxxxx Xxxxx & XxXxxxxxx LLP Letterhead]
January 21, 2005
Solexa Limited
c/o Abingworth Management Ltd.
0000 Xxxx Xxxx Xxxx
Xxxx. 0, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
This opinion is being delivered to you in connection with the Acquisition
Agreement dated as of September 28, 2004 (the "Acquisition Agreement") between
Solexa Limited, a company registered in England and Wales ("Solexa") and Lynx
Therapeutics, Inc., a Delaware corporation ("Lynx"). Pursuant to the Acquisition
Agreement, Lynx will commence an exchange offer (the "Offer") to acquire all of
the outstanding `B' preferred shares of (pound)0.0025 each in the capital of
Solexa (the "B Preferred Shares"), to acquire all of the outstanding `A'
ordinary shares of (pound)0.0025 each in the capital of Solexa (the "A Ordinary
Shares"), and to acquire all of the outstanding ordinary shares of (pound)0.0025
each in the capital of Solexa (the "Ordinary Shares" and, together with the B
Preferred Shares and the A Ordinary Shares, the "Shares"), in exchange for
shares of Lynx common stock, par value $0.01 per share ("Lynx Common Stock").
Except as otherwise provided, capitalized terms used but not defined in
this opinion have the meanings set forth in the Acquisition Agreement. All
"section" references, unless otherwise indicated, are to the United States
Internal Revenue Code of 1986, as amended (the "Code").
We have acted as United States counsel to Solexa in connection with the
Offer. You have requested our opinion concerning the description of the material
United States federal income tax consequences of the Offer described in the
registration statement on Form S-4 filed with the Securities and Exchange
Commission, as amended at any time to and including the date hereof (the
"Registration Statement"). 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 (including without
limitation the First Closing Date and any Subsequent Closing Date) of, the
statements,
[XXXXXX XXXXXX ATTORNEYS LOGO] Solexa Limited
January 21, 2005
Page 2
covenants, representations, and warranties contained in the
following documents (including all exhibits and schedules attached thereto):
(a) the Acquisition Agreement;
(b) the Officer's Tax Certificates delivered to us by Solexa and Lynx
pursuant to the Acquisition Agreement (the "Tax Representation Letters");
(c) the Registration Statement; and
(d) such other instruments and documents related to the formation,
organization, and operation of Solexa and Lynx and related to the consummation
of the Offer and the other transactions contemplated by the Acquisition
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:
(a) Original documents submitted to us (including signatures thereto) are
authentic, documents submitted to us as copies conform to the original
documents, and all such documents have been (or will be by the First Closing
Date) duly and validly executed and delivered where due execution and delivery
are a prerequisite to the effectiveness thereof;
(b) All representations, warranties, and statements made or agreed to by
Lynx and Solexa, their managements, employees, officers, and directors in
connection with the Offer, including but not limited to, those set forth or
described in the Acquisition Agreement (including the exhibits thereto), the
Registration Statement, and the Tax Representation Letters are true and accurate
at all relevant times;
(c) All covenants contained in the Acquisition Agreement (including
exhibits thereto) and the Tax Representation Letters are performed without
waiver or breach of any material provision thereof;
(d) The Offer will be reported by Xxxxxx and Lynx on their respective
federal income tax returns in a manner consistent with the opinion set forth
below;
(e) Any representation or statement made to a party's "knowledge" or
similarly qualified is correct without such qualification;
(f) The Registration Statement, the Acquisition Agreement, and the Tax
Representation Letters reflect all the material facts relating to the Offer,
Solexa and Lynx;
[XXXXXX XXXXXX ATTORNEYS LOGO] Solexa Limited
January 21, 2005
Page 3
(g) As to all matters as to which any person or entity represents that it
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; and
(h) An opinion of counsel, substantially identical in substance to this
opinion, has been delivered to Lynx by Xxxxxx Godward LLP, and will not be
withdrawn prior to the First Closing Date.
Based on our examination of the foregoing items and subject to the
limitations, qualifications, and assumptions set forth here and in the
Registration Statement, we are of the opinion that, (i) for federal income tax
purposes, the Acquisition will be a "reorganization" within the meaning of
Section 368(a) of the Code, and (ii) statements in the Registration Statement
under the caption "The Transaction -- Material U.S. Federal Income Tax
Consequences," insofar as they purport to summarize certain provisions of the
statutes or regulations referred to therein, are accurate summaries in all
material respects.
This opinion is limited to the United States federal income tax
consequences of the Offer and does not address the various state, local, or
foreign tax consequences that may result from the Offer or the other
transactions contemplated by the Acquisition Agreement. In addition, no opinion
is expressed as to any United States federal income tax consequence of the Offer
or the other transactions contemplated by the Acquisition Agreement except as
specifically set forth here, and this opinion may not be relied upon except with
respect to the consequences specifically discussed here. No opinion is expressed
as to the United States federal income tax treatment that may be relevant to a
particular investor in light of personal circumstances or to certain types of
investors subject to special treatment under the United States federal income
tax laws (including, without limitation, life insurance companies, dealers in
securities, taxpayers subject to the alternative minimum tax in the year in
which the Offer occurs, banks, tax-exempt organizations, non-United States
persons, stockholders who exercise dissenters' rights, and stockholders who
acquired their shares pursuant to the exercise of options or otherwise as
compensation or who hold their stock as part of a straddle or risk reduction
transaction). 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.
No ruling has been sought from the Internal Revenue Service by Solexa or
Lynx as to the United States federal income tax consequences of any aspect of
the Offer. This opinion is not binding on the Internal Revenue Service or any
court of law, administrative agency or other governmental body. Our conclusions
are based on the Code, existing judicial decisions, administrative regulations,
and published rulings as in effect on the date of this opinion. No assurance can
be given that future legislative, judicial, or administrative changes or
interpretations will not adversely affect the accuracy of our conclusions. We
undertake no responsibility to advise you of any new developments in the
application or interpretation of the United States federal income tax laws.
[XXXXXX XXXXXX ATTORNEYS LOGO] Solexa Limited
January 21, 2005
Page 4
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. 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 (the "Securities Act")
or the rules or regulations promulgated thereunder or that we are experts with
respect to any portions of the Registration Statement within the meaning of the
term "experts" as used in the Securities Act, or the rules or regulations
promulgated thereunder. The filing of this opinion as an exhibit to the
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 Solexa, our client.
Very truly yours,
/s/ Xxxxxx Xxxxxx Xxxxx & XxXxxxxxx
