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EXHIBIT 8.2
[Coudert Brothers Letterhead]
August 13, 1999
Xxxxxxx Medical Products
00000 Xxxx Xxxx Xxxxxxx
Xxxxxx, XX 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
capital stock of Merger Sub will be converted into one share of 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, equal to the Exchange Ratio,
including the corresponding percentage of Parent Rights, with cash 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
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August 13, 1999
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Merger and the Agreement are more fully described in Parent's Registration
Statement on Form S-4 (the "Registration 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 (A) in
accordance with the Agreement and (B) as described in the Prospectus/Proxy
Statement and (2) 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. We have relied on the opinion of Xxxx X.
Xxxx, Esq., General Counsel of the Company, that the Merger, upon consummation
in accordance with the Agreement, will qualify as a statutory merger under the
laws of the State of Utah.
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 the Company, 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.
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August 13, 1999
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(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 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 stockholder 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
stockholder in exchange for Shares pursuant to the Merger will include the
holding period that such Shares were held by the stockholder, provided such
Shares were held as capital assets (within the meaning of Section 1221 of the
Code) by such stockholder at the Effective Time.
(6) A stockholder 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 stockholder's tax basis in such fractional
share and the amount of cash received.
Except as expressly set forth in paragraphs (1) through (6), 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 stockholders 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/ COUDERT BROTHERS
