Exhibit 8.2
March 22, 2000
Celtrix Pharmaceuticals, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
This opinion is being delivered to you in connection with the Amended
and Restated Agreement and Plan of Reorganization dated as of November 30, 1999,
and amended as of February 9, 2000 (including all amendments thereto, the
"Agreement") by and among Insmed Incorporated, a Virginia corporation
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("Parent"), Celtrix Pharmaceuticals, Inc., a Delaware corporation ("Celtrix"),
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Celtrix Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary
of Parent ("Sub"), and Insmed Pharmaceuticals, Inc., a Virginia corporation
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("Insmed"). Pursuant to the Agreement, (i) Sub will merge with and into Celtrix
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and Celtrix will become a wholly owned subsidiary of Parent (the "Merger"), and
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(ii) shareholders of Insmed will exchange all of their Insmed Shares for Parent
Common Stock and Insmed will also become a wholly owned subsidiary of Parent
(the "Capital Contribution" and collectively with the Merger, the
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"Transaction").
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Except as otherwise provided, 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").
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We have acted as legal counsel to Celtrix in connection with the
Merger and the Transaction. As such, and 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 Agreement (including exhibits);
2. Representations made to us by Celtrix, Sub, Insmed and Parent in
certificates of even date herewith delivered to us by authorized officers of
those corporations ("Officer's Tax Certificates");
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Celtrix Pharmaceuticals, Inc.
March 22, 2000
Page 2
3. The Registration Statement filed by Insmed Incorporated with the
Securities Exchange Commission (which includes a proxy statement-prospectus
relating to the Merger) (the "Registration Statement").
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4. Such other instruments and documents related to the operation of
Celtrix, Sub, Insmed and Parent, or to the consummation of the Merger, the
Transaction, and the transactions contemplated thereby, as we have deemed
necessary or appropriate.
In connection with rendering this opinion, we have assumed or obtained
representations (and are relying thereon, without any independent investigation
or review thereof) that:
1. 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;
2. Any representation or statement made "to the best knowledge of" or
otherwise similarly qualified is correct without such qualification. As to all
matters in which a person or entity making a representation has represented that
such person or entity either is not a party to, does not have, or is not aware
of any present plan, intention, understanding or agreement to take an action,
there is in fact no plan, intention, understanding or agreement and such action
will not be taken;
3. All statements, descriptions and representations contained in any
of the documents referred to herein or otherwise made to us by Celtrix, Sub,
Insmed or Parent, their managements, employees, officers, directors and
stockholders in connection with the Merger and the Transaction, including
without limitation the Agreement and the Officer's Tax Certificates, 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
statements, descriptions and representations;
4. The Merger will be reported by Parent, Insmed and Celtrix on their
respective federal income tax returns in a manner consistent with the opinion
set forth below;
5. The Merger and Transaction 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 law;
6. In the Merger, shares of Celtrix capital stock possessing at least
80% of the total combined voting power of all classes of stock entitled to vote
and at least 80% of the
Celtrix Pharmaceuticals, Inc.
March 22, 2000
Page 3
total number of shares of all other classes of Celtrix capital stock will be
exchanged solely for Parent voting stock (taking into account as Celtrix capital
stock outstanding at the Effective Time of the Merger shares of Celtrix capital
stock exchanged, or redeemed by Celtrix, including without limitation shares of
Celtrix's Series A and Series B Preferred Stock, for cash or other property
originating with, or reimbursed to Celtrix by, Parent, Insmed or any other
person other than Celtrix); and
7. The opinion of counsel to be issued by Hunton & Xxxxxxxx to Insmed
and Parent has been delivered and not withdrawn.
Based on our examination of the foregoing items and subject to the
assumptions, exceptions, limitations and qualifications set forth herein, we are
of the opinion that:
(a) for federal income tax purposes, the Merger will be a
"reorganization" as defined in Section 368(a) of the Code, and
(b) the opinion ascribed to us in the Registration Statement under
the caption "Material Federal Income Tax Consequences," except as otherwise
indicated, represents our opinion as to the principal U.S. federal income tax
consequences of the Merger under applicable law.
This opinion does not apply to, and no conclusion is expressed regarding, the
treatment of Celtrix shareholders to the extent that they receive (i) Parent
Common Stock with respect to accrued but unpaid dividends, or (ii) property or
rights (other than Parent common stock) with respect to Celtrix capital stock.
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 addresses only the classification of the Merger as a
reorganization under Section 368(a) of the Code 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 and the Transaction). In particular, we express no
opinion regarding the tax consequences of the exchange of shares of Insmed
capital stock for shares of Parent capital stock in the capital contribution.
Celtrix Pharmaceuticals, Inc.
March 22, 2000
Page 4
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 and the capital contribution, 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 "Material Federal Income Tax Consequences" 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 Registration Statement and the references to the opinion
and our firm therein are not intended to create liability under the applicable
state law to any person other than Celtrix, our client.
This opinion has been delivered to you for the purpose of satisfying
the conditions of the Agreement and is intended solely for your benefit; it may
not be relied upon for any other purpose or by any other person or entity, and
may not be made available to any other person or entity without our prior
written consent.
Very truly yours,
VENTURE LAW GROUP
A PROFESSIONAL CORPORATION
