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EXHIBIT 8.1
[Xxxxx Xxxxxxx & Xxxx LLP Letterhead]
August 13, 1999
Xxxxxxxx-Xxxxx Corporation
000 Xxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Ladies and Gentlemen:
We refer to the Agreement and Plan of Merger dated as of December 23,
1998 (the "Agreement") among Xxxxxxxx-Xxxxx Corporation, a Delaware corporation
("Parent"), Jazz Acquisition Corp., a Utah corporation and a direct wholly-owned
subsidiary of Parent ("Merger Sub"), and Xxxxxxx Medical Products, a Utah
corporation (the "Company"), which provides for the merger (the "Merger") of
Merger Sub with and into the Company on the terms and conditions therein set
forth, the time at which the Merger becomes effective being hereinafter referred
to as the "Effective Time." Capitalized terms used but not defined herein have
the meanings specified in the Agreement.
As provided in the Agreement, at the Effective Time, by reason of the
Merger: (1) all outstanding Shares, if any, then owned by the Company or any
direct or indirect subsidiary of the Company and all outstanding Shares then
owned by Parent, Merger Sub or any other direct or indirect subsidiary of Parent
(which, in each case described in clause (1), are not held on behalf of third
parties) will be canceled, and no capital stock of Parent or other consideration
will be delivered in exchange therefor; (2) each then outstanding share of
Common Stock of Merger Sub will be converted into one share of the Common Stock
of the Surviving Corporation; and (3) each then outstanding Share (other than
Shares canceled as described in clause (1) above) will be converted into, and
become exchangeable for, that percentage of a validly issued, fully paid and
nonassessable share of Parent Common Stock which is equal to the Exchange Ratio,
including the corresponding percentage of Parent Rights, with cash being paid in
lieu of fractional shares of Parent Common Stock. Accordingly, immediately
following the Merger, the former holders of Shares (other than Shares described
in clause (1) above) will hold Parent Common Stock issued in the Merger (and
Parent Rights and cash in lieu of any fractional shares of Parent Common Stock)
and the Company, as the surviving corporation, will be a wholly-owned
subsidiary of Parent. The Merger and the Agreement are more fully described in
Parent's Registration Statement on Form S-4 (the "Registration
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August 13, 1999
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Statement") which is being filed by Parent with the Securities and Exchange
Commission pursuant to the Securities Act of 1933, as amended. The Registration
Statement includes the Prospectus/Proxy Statement (the "Prospectus/Proxy
Statement") of Parent and the Company.
In rendering the opinions expressed below, we have relied upon the
accuracy and completeness of the facts, information and representations, and the
completeness of the covenants, contained in the Agreement, the Prospectus/Proxy
Statement and such other documents as we have deemed relevant and necessary.
Such opinions are conditioned, among other things, not only upon the accuracy
and completeness thereof as of the date hereof, but also the continuing accuracy
and completeness thereof as of the Effective Time. Moreover, we have assumed the
absence of any change to any of such instruments between the date hereof and the
Effective Time.
We have assumed the authenticity of all documents submitted to us as
originals, the genuineness of all signatures, the legal capacity of all natural
persons and the conformity with original documents of all copies submitted to us
for our examination. We have also assumed: (1) that the transactions related to
the Merger or contemplated by the Agreement will be consummated in accordance
with the Agreement and as described in the Prospectus/Proxy Statement; (2) that
the Merger will qualify as a statutory merger under the laws of the State of
Utah; and (3) the accuracy as of the date hereof, and the continuing accuracy as
of the Effective Time, of the written statements made by executives of Parent
and the Company contained in the Parent Tax Certificate and the Company Tax
Certificate, respectively.
In rendering the opinions expressed below, we have considered the
applicable provisions of the Internal Revenue Code of 1986, as amended (the
"Code"), regulations promulgated thereunder by the United States Treasury
Department (the "Regulations"), pertinent judicial authorities, rulings of the
Internal Revenue Service and such other authorities as we have considered
relevant. It should be noted that the Code, the Regulations and such judicial
authorities, rulings and other authorities are subject to change at any time
and, in some circumstances, with retroactive effect; and any such change could
affect the opinions stated herein.
Based upon and subject to the foregoing, it is our opinion, as counsel
for Parent, that for federal income tax purposes:
(1) The Merger will constitute a "reorganization" within the
meaning of Section 368(a) of the Code, and the Company, Merger Sub and
Parent will each be a party to such reorganization within the meaning
of Section 368(b) of the Code.
(2) No gain or loss will be recognized by Parent or the
Company as a result of the Merger.
(3) No gain or loss will be recognized by the stockholders of
the Company upon the exchange of their Shares solely for shares of
Parent Common Stock pursuant to the
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August 13, 1999
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Merger, except with respect to cash, if any, received in lieu of
fractional shares of Parent Common Stock.
(4) The aggregate tax basis of the shares of Parent Common
Stock received by a shareholder solely in exchange for Shares pursuant
to the Merger (including fractional shares of Parent Common Stock for
which cash is received) will be the same as the aggregate tax basis of
the Shares exchanged therefor.
(5) The holding period for shares of Parent Common Stock
received by a shareholder in exchange for Shares pursuant to the Merger
will include the holding period that such Shares were held by the
shareholder, provided such Shares were held as capital assets (within
the meaning of Section 1221 of the Code) by such shareholder at the
Effective Time.
(6) A shareholder of the Company who receives cash in lieu of
a fractional share of Parent Common Stock will recognize gain or loss
equal to the difference, if any, between such shareholder's tax basis
in such fractional share and the amount of cash received.
Except as expressly set forth in paragraphs (1) through (6) in the
preceding paragraph, inclusive, you have not requested, and we do not herein
express, any opinion concerning the tax consequences of, or any other matters
related to, the Merger.
The opinions set forth above may not be applicable to shareholders of
the Company that received their Shares as compensation or that are foreign
corporations, foreign partnerships or other foreign entities or individuals who
are not citizens or residents of the United States.
We assume no obligation to update or supplement this letter to reflect
any facts or circumstances which may hereafter come to our attention with
respect to the opinions expressed above, including any changes in applicable law
which may hereafter occur.
We hereby consent to the filing of this letter as an Exhibit to the
Registration Statement and to all references to our Firm included in or made a
part of the Registration Statement.
Very truly yours,
/s/ XXXXX XXXXXXX & XXXX LLP
Xxxxx Xxxxxxx & Xxxx LLP
