Exhibit 8.2
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
One Financial Center
Boston, Massachusetts 02111
617 542 6000
617 542 2241 fax
December 13, 2002
Variagenics, Inc.
60 Hampshire Street
Cambridge, MA 02139
Ladies and Gentlemen:
This opinion is being delivered to you in connection with the Form S-4
Registration Statement (the "Registration Statement") filed pursuant to the
Agreement and Plan of Merger dated as of November 9, 2002 (the "Reorganization
Agreement"), by and among Hyseq, Inc., a Nevada corporation ("Parent"), Vertical
Merger Corp., a Delaware corporation and wholly owned subsidiary of Parent
("Merger Sub"), and Variagenics, Inc., a Delaware corporation (the "Company").
Except as otherwise indicated, capitalized terms used but not defined herein
shall have the meanings set forth in the Reorganization Agreement. All section
references, unless otherwise indicated, are to the Internal Revenue Code of
1986, as amended (the "Code").
We have acted as counsel to the Company in connection with the Transaction. 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 exhibits and schedules attached thereto):
(A) the Reorganization Agreement;
(B) the Registration Statement;
(C) those certain tax representations by Parent, Merger Sub and the
Company in their respective letters to be delivered to us at the
time of the Closing (the "Tax Representation Letters"); and
(D) 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 Transaction and the other transactions
contemplated by the Reorganization Agreement as we have deemed
necessary or appropriate.
MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.
Variagenics, INC.
December 13, 2002
Page 2
In connection with rendering this opinion, we have assumed (without any
independent investigation or review thereof) that:
(a) Original documents submitted to us (including signatures thereto) are
authentic, documents submitted to us as copies conform to the original
documents, and that all such documents have been (or will be by the Effective
Time) duly and validly executed and delivered where due execution and delivery
are a prerequisite to the effectiveness thereof;
(b) All representations, warranties and statements made or agreed to by
Parent, Merger Sub and the Company, their managements, employees, officers,
directors and stockholders in connection with the Transaction, including, but
not limited to, those set forth in the Reorganization Agreement (including the
exhibits thereto) and the Tax Representation Letters are true and accurate at
all relevant times;
(c) All covenants contained in the Reorganization Agreement (including
exhibits thereto) and the Tax Representation Letters are performed without
waiver or breach of any material provision thereof;
(d) The Transaction will be consummated in accordance with the
Reorganization Agreement without any waiver or breach of any material provision
thereof, and the Merger will be effective under applicable state law;
(e) Any representation or statement made "to the knowledge of" or
similarly qualified is correct without such qualification; and
(f) The opinion of even date herewith rendered by Latham & Watkins to
Parent and filed as Exhibit 8.1 to the Registration Statement has been delivered
and has not been withdrawn.
Based on our examination of the foregoing items and subject to the limitations,
qualifications, assumptions and caveats set forth herein, we are of the opinion
that, for federal income tax purposes, the Transaction will be a reorganization
within the meaning of Section 368(a) of the Code.
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 "Material United States Federal Income Tax Consequences of the
Transaction" 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 respects.
This opinion does not address the various state, local or foreign tax
consequences that may result from the Transaction or the other transactions
contemplated by the Reorganization Agreement and does not address the federal
tax consequences of any transaction other than the Transaction as described in
the Reorganization Agreement. In addition, no opinion is expressed as to any
federal income tax consequence of the Transaction or the other transactions
contemplated by the
MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.
Variagenics, INC.
December 13, 2002
Page 3
Reorganization Agreement except as specifically set forth herein, and this
opinion may not be relied upon except with respect to the consequences
specifically discussed herein.
No opinion is expressed as to any transaction whatsoever, including the
Transaction, if any of the representations, warranties, statements and
assumptions material to our opinion and upon which we have relied are not
accurate and complete in all material respects at all relevant times.
This opinion only represents our best judgment as to the federal income tax
consequences of the Transaction and is not binding on the Internal Revenue
Service or any court of law, tribunal, administrative agency or other
governmental body. The conclusions are based on the Code, existing judicial
decisions, administrative regulations and published rulings. No assurance can be
given that future legislative, judicial or administrative changes or
interpretations would not adversely affect the accuracy of the conclusions
stated herein. Nevertheless, by rendering this opinion, we undertake no
responsibility to advise you of any new developments in the application or
interpretation of the federal income tax laws.
This opinion is being delivered solely in connection with the filing of the
Registration Statement. It is intended for the benefit of the Company and may
not be relied upon or utilized for any other purpose or by any other person and
may not be made available to any other person without our prior written consent.
We consent to the reference to our firm under the caption "Material United
States Federal Income Tax Consequences of the Transaction" "Legal Matters" in
the Proxy Statement included in the Registration Statement and to the
reproduction and filing of this opinion as an exhibit to the Registration
Statement. By providing this consent, we are not admitting that we are within
the category of persons whose consent is required pursuant to Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations promulgated
thereunder.
Sincerely,
/s/ Mintz, Levin, Cohn, Ferris, Glovsky
and Popeo, P.C.
MINTZ, LEVIN, COHN, FERRIS, GLOVSKY
AND POPEO, P.C.