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EXHIBIT 8.1
XXXXXX, XXXXX & XXXXXXX LLP
May 10, 2001
FreeMarkets, Inc.
FreeMarkets Center
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Ladies and Gentlemen:
Pursuant to the Agreement and Plan of Reorganization dated as of February 7,
2001 (the "Agreement") by and among FreeMarkets, Inc., a Delaware corporation
("Parent"), Axe Acquisition Corporation, a Delaware corporation and a
wholly-owned subsidiary of Parent ("Merger Sub"), and Adexa, Inc., a California
corporation (the "Company"), Merger Sub is to merge with and into the Company,
with the Company surviving (the "Merger"). Capitalized terms not otherwise
defined in this opinion have the meanings ascribed to such terms in the
Agreement.
We have acted as legal counsel to Parent in connection with the Merger and in
that connection you have requested our opinion regarding certain federal income
tax consequences of the Merger. As such, and for the purpose of rendering our
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 (the "Documents"):
1. The Agreement;
2. The registration statement of Parent on Form S-4 (No. 333-56124) filed with
the Securities and Exchange Commission with respect to the Parent Common
Stock to be issued to the shareholders of the Company in connection with
the Merger (the "Registration Statement") and the proxy
statement/prospectus included the Registration Statement (the "Proxy
Statement/Prospectus");
3. The representations made to us by Parent in its letter to us dated April 5,
2001 (the "Parent Tax Certificate");
4. The representations made to us by the Company in its letter to us dated
May 4, 2001 (the "Company Tax Certificate"); and
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5. Such other instruments and documents related to the formation,
organization and operation of Parent, Merger Sub and the Company and to
the consummation of the Merger as we have deemed necessary or
appropriate for purposes of our opinion.
For purposes of this opinion, we have assumed, with your permission and without
independent investigation, that (i) the Merger will be consummated in the manner
contemplated by the Proxy Statement/Prospectus and in accordance with the
provisions of the Agreement without the waiver of any conditions to any party's
obligation to effect the Merger, (ii) original documents (including signatures)
are authentic, (iii) documents submitted to us as copies conform to the original
documents, (iv) there has been (or will be by the date of the Merger) due
execution and delivery of all documents where due execution and delivery are
prerequisites to the effectiveness of those documents and (v) the Merger will be
effective under applicable state law.
Furthermore, as to certain facts material to our opinion that we did not
independently establish or verify, we have relied, with your permission, upon
the accuracy of statements and representations of officers of the Parent and the
Company contained in the Parent Tax Certificate and the Company Tax Certificate
and have assumed, with your permission and without independent investigation,
that, as to all matters in which a person or entity making a representation has
represented that such person or entity or a related party is not a party to,
does not have, or is not aware of, any plan, intention, understanding or
agreement to take action, there is in fact no plan, intention, understanding or
agreement and such action will not be taken.
OPINION
Based on the facts and assumptions specified herein and the statements,
covenants, representations and warranties contained in the Documents, and on the
Internal Revenue Code of 1986, as amended (the "Code"), the regulations
promulgated thereunder, and judicial and administrative interpretations thereof,
all in effect as of today's date, it is our opinion that the discussion
contained in the Registration Statement under the caption "The Merger - Material
United States Federal Income Tax Consequences," subject to the limitations,
qualifications and assumptions described therein, sets forth the material United
States federal income tax considerations applicable to the Company's
stockholders in the Merger.
Our opinion expressed herein is based upon existing law, regulations,
administrative pronouncements and judicial authority, all as in effect as of
today's date. It represents our best legal judgment as to the matters addressed
herein, but is not binding on the Internal Revenue Service or the courts.
Accordingly, no assurance can be given that the opinion expressed herein, if
contested, would be sustained by a court. Furthermore, the authorities upon
which we rely may be changed at any time with retroactive effect. No assurances
can be given as to the effect of any such change on our opinion. If any of the
facts and assumptions pertinent to the federal income tax treatment of the
Merger specified herein or any of the statements, covenants, representations or
warranties
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contained in the Documents are, or later become inaccurate, please advise us so
that we may consider the effect, if any, on our opinion. In addition, our
opinion is limited to the tax matters specifically covered hereby, and we have
not been asked to address, nor have we addressed, any other tax consequences of
the Merger or any other transactions. This opinion is being provided solely for
the benefit of Parent and is not to be used, circulated, quoted or otherwise
referred to for any purpose without our express written permission. No other
person or party shall be entitled to rely on this opinion. We hereby consent to
the filing of this opinion as an exhibit to the Registration Statement and to
the reference to us in the section captioned "The Merger -- Material United
States Federal Income Tax Consequences" in the Proxy Statement/Prospectus
constituting a part of the Registration Statement. In giving this consent we do
not hereby admit that we come 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/ Xxxxxx, Xxxxx & Bockius LLP
