EXHIBIT 8.1
(000) 000-0000
[LETTERHEAD OF XXXXXXX XXXXXXX & XXXXXXXX]
October 28, 1997
Re: AGREEMENT AND PLAN OF MERGER DATED AUGUST 23, 1997
BY AND BETWEEN THE XXXXXX-XXXXX CORPORATION, SEVEN
ACQUISITION CORP., AND PERSEPTIVE BIOSYSTEMS, INC.
The Xxxxxx-Xxxxx Corporation
000 Xxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Ladies and Gentlemen:
We have acted as counsel for The Xxxxxx-Xxxxx Corporation, a New York
corporation ("Xxxxxx-Xxxxx"), in connection with the preparation and execution
of the Agreement and Plan of Merger, dated as of August 23, 1997 (the "Merger
Agreement"), among Xxxxxx-Xxxxx, Seven Acquisition Corp., a wholly-owned
subsidiary of Xxxxxx-Xxxxx incorporated in Delaware ("Merger Sub") and
PerSeptive Biosystems, Inc., a Delaware corporation ("PerSeptive"). Pursuant to
the Merger Agreement, Merger Sub will merge with and into PerSeptive (the
"Merger"), and PerSeptive will become a wholly-owned subsidiary of Xxxxxx-Xxxxx.
Unless otherwise defined, capitalized terms referred to herein have the meanings
set forth in the Merger Agreement. All section
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references, unless otherwise indicated, are to the Internal Revenue Code of
1986, as amended (the "Code").
You have requested our opinion regarding certain United States federal
income tax consequences of the Merger. In delivering this opinion, we have
reviewed and relied upon the facts, statements, descriptions and representations
set forth in the Registration Statement on Form S-4 filed by Xxxxxx-Xxxxx with
the Securities and Exchange Commission (which contains a joint proxy
statement/prospectus) (the "Registration Statement"), the Merger Agreement
(including Exhibits) and such other documents pertaining to the Merger as we
have deemed necessary or appropriate. We have also relied upon certificates of
officers of Xxxxxx-Xxxxx, Merger Sub and PerSeptive, respectively (the
"Officers' Certificates") and upon certificates of certain shareholders of
PerSeptive (the "Shareholders' Certificates").
In connection with rendering this opinion, we have also assumed or
have obtained representations (without any independent investigation) that, as
of the date hereof and as of the Effective Time of the Merger:
1. Original documents (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 of the Merger) due execution and
delivery of all documents where due execution and delivery are prerequisites to
effectiveness thereof;
2. Any statement made in any of the documents referred to herein,
"to the best of the knowledge" of any person or party is correct without such
qualification;
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3. All statements, descriptions and representations contained in any
of the documents referred to herein or otherwise made to us are true and correct
in all material respects and no actions have been (or will be) taken which are
inconsistent with such representations;
4. The Merger will be reported by Xxxxxx-Xxxxx and PerSeptive on
their respective federal income tax returns in a manner consistent with the
opinion set forth below;
5. The shareholders of PerSeptive do not, and will not on or before
the Effective Time of the Merger, have an existing plan or intention to dispose
of an amount of Xxxxxx-Xxxxx Common Stock to be received in the Merger (or to
dispose of PerSeptive capital stock in anticipation of the Merger) such that the
shareholders of PerSeptive will not receive and retain a meaningful continuing
equity ownership in Xxxxxx-Xxxxx that is sufficient to satisfy the continuity of
interest requirement set forth in Treas. Reg. Section 1.368-1(b) and as
interpreted in certain Internal Revenue Service rulings and federal judicial
decisions;
6. After the Merger, PerSeptive will hold "substantially all" of its
and Merger Sub's properties within the meaning of Section 368(a)(2)(E)(i) of the
Code and the regulations promulgated thereunder;
7. To the extent any expenses relating to the Merger (or the "plan
of reorganization" within the meaning of Treas. Reg. Section 1.368-1(c) with
respect to the Merger) are funded directly or indirectly by a party other than
the incurring party, such
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expenses will be within the guidelines established in Revenue Ruling 73-54,
1973-1 C.B. 187; and
8. No PerSeptive shareholder guaranteed any PerSeptive
indebtedness outstanding during the period immediately prior to the Effective
Time of the Merger.
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, if the Merger is consummated in accordance with the Merger
Agreement (and without any waiver, breach or amendment of any of the provisions
thereof) and the statements set forth in the Officers' Certificates and the
Shareholders' Certificates are true and correct as of the date hereof and as of
the Effective Time of the Merger, for federal income tax purposes, the Merger
will qualify as a reorganization within the meaning of Section 368(a) of the
Code, and PerSeptive, Xxxxxx-Xxxxx and Merger Sub will each be a party to the
reorganization within the meaning of Section 368(b) of the Code.
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, 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, would not adversely affect the
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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.
This opinion addresses only the matters set forth above, and 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).
No opinion is expressed as to any transaction other than the Merger as
described in the Merger Agreement or to any transaction whatsoever, including
the Merger, if all the transactions described in the Merger Agreement are not
consummated in accordance with the terms of the Merger 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 one 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.
This opinion has been delivered to you solely for the purpose of
being included as an exhibit to the Registration Statement and may not be
relied upon by you for any other purpose, or relied upon by, or furnished to,
any other person, firm or corporation without our prior written consent. We
hereby consent to the filing of this opinion as an exhibit to the Registration
Statement and to the use of our name under the
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captions "The Merger -- Certain United States Federal Income Tax Consequences"
and "Legal Opinions" in the Registration Statement. In giving this consent, we
do not admit that we are within the category of persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the Rules
and Regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Xxxxxxx Xxxxxxx & Xxxxxxxx
XXXXXXX XXXXXXX & XXXXXXXX
