1
EXHIBIT 8.2
July 28, 1998
Oncormed, Inc.
000 Xxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
This opinion is being delivered to you in connection with the
Agreement and Plan of Merger and Reorganization (the "Agreement") dated as of
July 6, 1998, among Gene Logic Inc., a Delaware corporation ("Gene Logic"),
Gene Logic Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of Gene Logic ("Merger Sub"), and Oncormed, Inc., a Delaware
corporation ("Oncormed"). Pursuant to the Agreement, Oncormed will merge with
and into Merger Sub (the "Merger").
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").
We have acted as legal counsel to Oncormed 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 schedules and exhibits thereto):
1. The Agreement;
2. Representations made to us in a letter by Xxxx Xxxxx
and Merger Sub;
3. Representations made to us in a letter by Xxxxxxxx;
4. The Form S-4 Registration Statement filed with the
Securities and Exchange Commission in connection with the Merger (the
"Registration Statement"); and
5. Such other instruments and documents related to the
formation, organization and operation of Gene Logic, Oncormed and Merger Sub
and to the consummation of the Merger and the other transactions contemplated
by the Agreement as we have deemed
2
Oncormed, Inc. July 28, 1998
Page 2
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:
A. Original documents submitted to us (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 the effectiveness thereof;
B. All representations made to us are true and correct
as of the date of this letter and will be true and correct as of the Effective
Time (and thereafter to the extent related to periods after the Merger). All
representations or statements made "to the best knowledge" of a person or
similarly qualified are and will be correct without such qualification;
C. The Merger will be consummated in accordance with the
Agreement without any waiver or breach of any material provision thereof, and
the Merger will be effective under the laws of the State of Delaware; and
D. The Merger will be reported by Xxxx Xxxxx and
Oncormed on their respective federal income tax returns in a manner consistent
with the opinion set forth below.
We also understand that Xxxxxx Godward LLP is delivering a tax
opinion letter consistent with this letter. We are assuming that such tax
opinion letter will be delivered and will not be 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, for federal income tax purposes, the Merger will
constitute a "reorganization" within the meaning of Section 368(a) of the Code
for federal income tax purposes.
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 Consequences"
contained in the Registration Statement and believe that, insofar as it relates
to statements of law and legal conclusions, it is correct in all material
aspects.
In addition to the assumptions and representations set forth
above, this opinion is subject to the exceptions, limitations and
qualifications set forth below.
a. 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,
3
Oncormed, Inc. July 28, 1998
Page 3
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, will 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.
b. This opinion addresses only the classification of the
Merger as a reorganization under Section 368(a) of the Code. This opinion 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). In particular, we express no
opinion regarding (i) whether and the extent to which any Oncormed stockholder
who has provided or will provide services to Oncormed, Gene Logic or Merger Sub
will have compensation income under any provision of the Code; (ii) the effects
of such compensation income, including but not limited to the effect upon the
basis and holding period of the Gene Logic Common Stock received by any such
stockholder in the Merger; (iii) the potential application of the "golden
parachute" provisions (Sections 280G, 3121(v)(2) and 4999) of the Code, or the
regulations promulgated thereunder; (iv) other than that the Merger will be a
reorganization within the meaning of Section 368(a) of the Code and the
consequences that follow directly and solely from such characterization, the
corporate level tax consequences of the Merger to Gene Logic, Merger Sub or
Oncormed, including without limitation the survival and/or availability, after
the Merger, of any of the federal income tax attributes or elections of
Oncormed, after application of any provision of the Code, as well as the
regulations promulgated thereunder and judicial interpretations thereof; (v)
the basis of any equity interest in Oncormed acquired by Gene Logic in the
Merger; (vi) the tax consequences of any transaction in which Oncormed stock or
a right to acquire Oncormed stock was received; or (vii) the tax consequences
of the Merger to holders of options or warrants to purchase Oncormed stock.
c. No opinion is expressed as to any transaction other
than the Merger as described in the Agreement or as to any transaction
whatsoever, including the Merger, 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 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.
4
Oncormed, Inc. July 28, 1998
Page 4
d. This opinion has been delivered to you solely for the
benefit of Oncormed and its shareholders; 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. We hereby
consent to the filing of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in such
Registration Statement and any amendment thereto.
Very truly yours,
/s/ Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
XXXXXXX, XXXXXXX & XXXXXXXX LLP
