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EXHIBIT 8.2
November 3, 1997
CompuRAD, Inc.
0000 Xxxxx Xxxx Xxxx
Xxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
This opinion is being delivered to you in accordance with Section 6.3(d)
of the Agreement and Plan of Merger dated as of September 28, 1997 (the
"Reorganization Agreement") by and among Lumisys Incorporated, a Delaware
corporation ("Lumisys"), SAC Acquisition Corporation, a Delaware corporation and
wholly-owned subsidiary of Lumisys ("Merger Sub") and CompuRAD, Inc., a Delaware
corporation ("CompuRAD"). Pursuant to the terms of the Reorganization Agreement,
Merger Sub will merge with and into CompuRAD (the "Merger"), and CompuRAD will
become a wholly-owned subsidiary of Lumisys.
Except as otherwise provided, capitalized terms used but not defined
herein shall have the meanings set forth in the Reorganization Agreement. All
section references, unless otherwise indicated, are to the Internal Revenue Code
of 1986, as amended (the "Code").
We have acted as counsel to CompuRAD 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, of the statements, covenants,
representations and warranties contained in, the following documents (including
all exhibits and schedules attached thereto):
1. the Reorganization Agreement;
2. those certain tax representation letters dated November 3, 1997
delivered to us by Xxxxxxx, Xxxxxx Sub and CompuRAD containing
certain representations of Xxxxxxx, Xxxxxx Sub and CompuRAD (the
"Tax Representation Letters");
3. the Affiliate Agreements dated November 3, 1997 by certain
shareholders of CompuRAD in favor of Xxxxxxx, Merger Sub and
CompuRAD (the "Affiliate Agreements");
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November 3, 1997
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4. Continuity of Interest Certificates dated November 3, 1997 by
certain shareholders of CompuRAD in favor of Xxxxxxx, Merger Sub
and CompuRAD (the "Continuity of Interest Certificates");
5. the joint proxy statement/prospectus of CompuRAD and Lumisys
(the "Registration Statement"); and
6. Such other instruments and documents related to the formation,
organization and operation of Lumisys, Merger Sub and CompuRAD
and related to the consummation of the Merger and the other
transactions contemplated by the Reorganization 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 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;
b. All representations, warranties and statements made or agreed to
by Xxxxxxx, Merger Sub and CompuRAD, their managements,
employees, officers, directors and shareholders in connection
with the Merger, including, but not limited to, those set forth
in the Reorganization Agreement (including the exhibits
thereto), the Tax Representation Letters, the Affiliate
Agreements, and the Continuity of Interest Certificates are true
and accurate at all relevant times;
c. All covenants contained in the Reorganization Agreement
(including exhibits thereto), the Tax Representation Letters,
the Affiliate Agreements, and the Continuity of Interest
Certificates are performed without waiver or breach of any
material provision thereof;
d. There is no plan or intention on the part of the shareholders of
CompuRAD to engage in a sale, exchange, transfer, distribution,
pledge, or other disposition or any transaction which results in
a reduction of risk of ownership, or a direct or indirect
disposition of shares of Lumisys Common Stock to be received in
the Merger that would reduce CompuRAD's shareholders' ownership
of Lumisys Common Stock to a number of shares having an
aggregate fair market value, as of the Effective Time, of less
than fifty percent (50%) of the aggregate fair market value of
all of CompuRAD Common Stock outstanding immediately prior to
the Effective Time. (For purposes of the preceding
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November 3, 1997
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sentence, shares of CompuRAD Common Stock pursuant to which
shareholders of CompuRAD exercise dissenters' rights in the
Merger, which are exchanged for consideration in the Merger
other than shares of Lumisys Common Stock, including being
exchanged for cash in lieu of fractional shares of Lumisys
Common Stock or are sold, redeemed or disposed of in a
transaction that is in contemplation of or related to the
Merger, shall be considered shares of CompuRAD Common Stock held
by shareholders of CompuRAD immediately prior to the Merger
which are exchanged for shares of Lumisys Common Stock in the
Merger and then disposed of pursuant to a plan);
e. Any representation or statement made "to the best of knowledge"
or similarly qualified is correct without such qualification;
and
f. The opinion, dated November 3, 1997, from Xxxxxx Godward LLP to
Lumisys in satisfaction of Section 6.5(e) of the Reorganization
Agreement has been delivered and has not been withdrawn.
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, for federal income tax purposes, the Merger will be a
reorganization within the meaning of Sections 368(a)(1) of the Code.
In addition to your request for our opinion on this specific matter of
federal income tax law, you have asked us to review the discussion of federal
income tax issues contained in the Registration Statement. We have reviewed the
discussion entitled "Certain Federal Income Tax Considerations" contained in the
Registration Statement and believe that such information fairly presents the
current federal income tax law applicable to the Merger and the material federal
tax consequences to Lumisys, Merger Sub and CompuRAD, and CompuRAD's
shareholders as a result of the Merger.
We consent to the reference to our firm under the caption "Certain
Federal Income Tax Considerations" in the Proxy Statement included in the
Registration Statement and to the filing of this opinion as an exhibit to the
Proxy Statement and to the Registration Statement.
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 Reorganization Agreement. In addition, no opinion is
expressed as to any federal income tax consequence of the Merger or the other
transactions contemplated by the Reorganization 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 any transaction other than the Merger as
described in the Reorganization Agreement, or as to any other transaction
whatsoever, including the Merger, if all of the
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transactions described in the Reorganization Agreement are not consummated in
accordance with the terms of the Reorganization Agreement and without waiver of
any material provision thereof. To the extent that any of the representations,
warrants, 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 would 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 Merger 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, administration regulations and published rulings. 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.
This opinion has been delivered to you for the purpose of being included
as an exhibit to the Registration Statement and satisfying the conditions set
forth in Section 7.5(a) of the Reorganization Agreement. 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,
XXXXXX, XXXXXXX, XXXXXXXX & XXXXXX
Professional Corporation
