EXHIBIT 8.1
[XXXXXX XXXXXX LETTERHEAD]
April 25, 2002
Main (000) 000-0000
Fax (000) 000-0000
Identix Incorporated
000 Xxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
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 Identix and Visionics Acquisition Corp.
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;
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April 25, 2002
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(b) those tax representation letters delivered to us by Visionics,
Visionics Acquisition Corp. and Identix pursuant to the Agreement (the "Tax
Representation Letters");
(c) the Registration Statement; and
(d) such other instruments and documents related to the formation,
organization, and operation of Visionics and Visionics Acquisition Corp., 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 Xxxxxx 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:
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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.
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
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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 Xxxxxx Xxxxx & XxXxxxxxx LLP
