EXHIBIT 8.2
XXXXXX XXXXXXX XXXXXX &BRAND, LLP
0000 XXXXX XXXXX XXXXXX
XXXXXXXXXXX, XXXXXXXXX 00000
Telephone: 000.000.0000
Telecopy: 612.672.8397
April 25, 2002
Visionics Corporation
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Re: Merger pursuant to the Agreement and Plan of Merger (the "Agreement"),
dated as of February 22, 2002, among Identix Incorporated, a Delaware
corporation, ("Identix"), Visionics Acquisition Corp., a Delaware
corporation and wholly-owned subsidiary of Identix ("Visionics Acquisition
Corp."), and Visionics Corporation, a Delaware corporation ("Visionics")
Ladies and Gentlemen:
This opinion is being delivered to you in connection with the Registration
Statement on Form S-4 (the "Registration Statement") filed with the Securities
and Exchange Commission as file number 333-84428 pursuant to the Agreement and
Plan of Merger dated as of February 22, 2002 (the "Agreement"), by and among
Identix Incorporated, a Delaware corporation ("Identix"); Visionics Acquisition
Corp., a Delaware corporation and wholly-owned subsidiary of Identix ("Visionics
Acquisition Corp."); and Visionics Corporation, a Delaware corporation
("Visionics")
Except as otherwise provided, capitalized terms used but not defined
herein shall 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").
We have acted as tax counsel to Visionics in connection with the Merger.
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 (including without limitation the
Effective Time) of, the statements, covenants, representations, and warranties
contained in the following documents (including all exhibits and schedules
attached thereto):
(a) the Agreement;
(b) those tax representation letters delivered to us by Visionics,
Visionics Acquisition Corp. and Identix pursuant to the Agreement (the "Tax
Representation Letters");
April 25, 2002
Page 2
(c) the Registration Statement; and
(d) such other instruments and documents related to the organization and
operation of Visionics, and related to the consummation of the Merger and the
other transactions contemplated by the 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 Effective Time)
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
Visionics, Visionics Acquisition Corp. and Identix, their managements,
employees, officers, and directors in connection with the Merger, including but
not limited to those set forth or described in the 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 Agreement (including exhibits thereto)
and the Tax Representation Letters are performed without waiver or breach of any
material provision thereof;
(d) The Merger will be reported by Visionics, Visionics Acquisition Corp.
and Identix on their respective federal income tax returns in a manner
consistent with the opinion set forth below;
(e) Any representation or statement qualified with reference to the
"knowledge" or intention of a person is correct without such qualification;
(f) The Registration Statement, the Agreement, and the Tax Representation
Letters reflect all the material facts relating to the Merger, Visionics,
Visionics Acquisition Corp. and Identix;
(g) The Certificate of Merger will be accepted for filing by the Secretary
of State of the State of Delaware.
Based on our examination of the foregoing items and subject to the
limitations, qualifications, and assumptions set forth herein, we are of the
opinion that:
1. If the Merger is consummated in accordance with the Agreement, for
United States federal income tax purposes: (a) the Merger will be a
reorganization within the meaning of Section 368(a) of the Code, (b) each of
Visionics, Visionics Acquisition Corp. and Identix will be a party to that
reorganization within the meaning of Section 368(b) of the Code, and (c) except
with respect to cash received in lieu of a fractional share interest in Identix
Common Stock, no gain or loss with be recognized, for United States federal
income tax purposes, by a stockholder of Visionics as a result of the merger
with respect to shares of Visionics Common Stock converted into Identix Common
Stock.
April 25, 2002
Page 3
2. The discussion entitled "Material United States federal income tax
consequences of the merger" contained in the Registration Statement, insofar as
it relates to statements of law and legal conclusions, is correct in all
material respects.
This opinion is limited to the federal income tax consequences of the
Merger and does not address the various state, local, or foreign tax
consequences that may result from the Merger or the other transactions
contemplated by the Agreement. In addition, no opinion is expressed as to any
federal income tax consequence of the Merger or the other transactions
contemplated by the Agreement 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 the 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 federal income tax laws (for example, financial institutions,
insurance companies, foreign individuals and entities, tax-exempt entities,
dealers in securities, persons who are subject to the alternative minimum tax
provisions of the Code, stockholders whose shares are qualified small business
stock for purposes of Sections 1202 and 1045 of the Internal Revenue Code,
persons who acquired Visionics Common Stock pursuant to the exercise of an
employee stock option or persons or otherwise as compensation, or persons who
hold Visionics Common Stock as part of an integrated investment (including a
"straddle") composed of Visionics Common Stock and one or more other positions).
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. Finally, the
opinions set forth above are subject to all of the exceptions, conditions,
qualifications, limitations, assumptions and caveats set forth in the ABA Legal
Opinion Accord with respect to such opinions.
This opinion is not binding on the Internal Revenue Service or any court
of law, administrative agency or other governmental body and represents only our
judgment as to the likely outcome if the federal income tax consequences of the
Merger were properly presented to a court of competent jurisdiction. Our
conclusions are based on the Code, existing judicial decisions, administrative
regulations, and published rulings as in effect on the date hereof. No assurance
can be given that future legislative, judicial, or administrative changes or
interpretations will not adversely affect the accuracy of our conclusions.
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.
We consent to the reference to our firm under the caption "Material
Federal Income Tax Consequences" in the Proxy Statement included in the
Registration Statement and to the reproduction and filing of this opinion as an
exhibit to the Registration Statement.
Very truly yours,
/s/ Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP
