Exhibit 8
January 17, 2001
Empyrean Bioscience, Inc.
23800 Commerce Park Road
Suite A
Cleveland, Ohio 44122
Ladies and Gentlemen:
We have acted as counsel to Empyrean Bioscience, Inc., a Wyoming
corporation ("Empyrean Wyoming") and Empyrean Bioscience, Inc., a Delaware
corporation ("Empyrean Delaware"), in connection with the Agreement and Plan of
Merger dated as of January __, 2001, (the "Agreement") by and among Empyrean
Delaware and Empyrean Wyoming. Pursuant to the Agreement, Empyrean Wyoming will
merge with and into Empyrean Delaware (the "Merger"), with Empyrean Delaware
surviving 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").
FACTUAL BASIS FOR OPINION
For the purpose of rendering this opinion, we have examined and are relying
upon (without any independent investigation or review thereof) the truth,
accuracy and completeness, at all relevant times, of the certifications,
representations, statements, and warranties contained in the following
documents:
1. The Agreement;
2. Certifications and representations made to us by Empyrean Wyoming and
Empyrean Delaware in a certificate reproduced as Exhibit A hereto (the "Tax
Certificate"); and
3. Empyrean Wyoming's Form S-4 Registration Statement filed with the
Securities and Exchange Commission in connection with the Agreement (the
"Registration Statement").
The foregoing documents shall collectively be referred to as the
"Documents" in this letter.
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ASSUMPTIONS
In connection with rendering this opinion, we have assumed (without any
independent investigation) that:
1. Original documents (including signatures) are authentic, documents
submitted to us as copies conform to, and are true and complete copies of, 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 the effectiveness thereof.
2. Any certification, representation, or statement made in the Documents
"to the knowledge of," "to the best of the knowledge," or otherwise similarly
qualified is correct without such qualification. As to all matters in which a
person or entity making a certification, representation, or statement in the
Documents has certified, represented, or stated that such person or entity
either is not a party to, does not have, or is not aware of, any plan,
intention, understanding or agreement, there is in fact no such plan, intention,
understanding or agreement. As to any matter in which a person or entity making
a certification, representation, or statement in the Documents has certified,
represented, or stated that such certification, representation, or statement is
true and accurate in all "material aspects," such certification, representation,
or statement is true and accurate in all respects insofar as it relates to
issues associated with the federal income tax consequences of the Merger.
3. All certifications, representations, or statements contained in any of
the Documents or otherwise made to us are true and correct in all respects and
will continue to be true and correct in all material respects as of the
Effective Time of the Merger and all other relevant times, and no actions have
been or will be taken which are inconsistent with such certifications,
representations, or statements.
4. Each entity that is a party to the Documents has been duly organized or
formed and is validly existing and in good standing as a corporation or similar
organization under the laws of its jurisdiction of organization and is qualified
to do business and is in good standing as a foreign corporation or other
organization in each jurisdiction where by law it is required to be so
qualified.
5. All of the Documents have been duly authorized, executed and delivered
by each party thereto, constitute a valid and binding obligation upon each party
thereto, and are enforceable against each party thereto in accordance with their
terms. Each party has the requisite corporate or other organizational power and
authority to perform such party's obligations under the Documents, and each such
party has performed and will perform such party's obligations under the
Documents.
6. The Merger will be reported by Empyrean Wyoming and Empyrean Delaware on
the federal income tax return which will be filed for such companies in a manner
consistent with the opinion set forth below.
7. The Merger will be consummated in accordance with the Agreement (and
without any waiver, breach or amendment of any of the provisions thereof) and
will be effective under applicable state laws.
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8. No transactions have occurred or will occur following the Effective Time
othe Merger that would cause the continuity of interest requirement as specified
in Treasury Regulations Section 1.368-1(e) to be violated.
OPINION
Based on our examination of the Documents 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 Agreement (and
without any waiver, breach, or amendment of any of the provisions thereof) and
if the certifications, representations and warranties set forth in the Tax
Certificate and the Registration Statement are true and correct, then, for
United States federal income tax purposes:
1. The Merger will qualify as a "reorganization" within the meaning of
S368(a) of the Code.
2. No gain or loss will be recognized by holders of Empyrean Wyoming common
stock upon the surrender of their shares of Empyrean Wyoming common stock solely
in exchange for shares of Empyrean Delaware common stock.
3. Each shareholder's aggregate tax basis in the Empyrean Delaware common
stock received in the Merger will equal such shareholder's aggregate tax basis
in the Empyrean Wyoming common stock surrendered in exchange therefor.
4. The holding period of the Empyrean Delaware common stock received in the
Merger by each shareholder of Empyrean Wyoming will include the holding period
of the Empyrean Wyoming common stock surrendered in exchange therefor, provided
that the Empyrean Wyoming common stock was held by such shareholder as a capital
asset at the Effective Time of the Merger.
5. Empyrean Wyoming should not recognize gain or loss for federal income
tax purposes as a result of the Merger and Empyrean Delaware should succeed to
the federal income tax attributes of Empyrean Wyoming enumerated in Section
381(c).
EXCEPTIONS, LIMITATIONS AND QUALIFICATIONS
In addition to the assumptions set forth above, this opinion is subject to
the exceptions, limitations, and qualifications set forth below.
1. This opinion represents and is based upon our best judgment regarding
the application of current federal income tax laws (including 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 accuracy of the
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conclusions stated herein. Nevertheless, we undertake no responsibility to
advise you of any new developments in the application or the federal income tax
laws.
2. This opinion addresses only the classification of the Merger as a
reorganization under Section 368(a) of the Code and the consequences of the
Merger as described above, and does not address any other federal or any 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).
3. Insofar as the opinion relates to the federal income tax consequences
associated with the classification of the Merger as a reorganization under
Sections 368(a) of the Code (Items 2 through 4 of the opinion above), such
consequences are those generally applicable to Empyrean Wyoming shareholders who
do not exercise their dissenters' rights. The opinion does not address the tax
consequences to specific categories of shareholders accorded special treatment
under the Code including, without limitation, shareholders who acquired their
shares of Empyrean Wyoming common stock upon the exercise of stock options or in
other compensatory transfers, foreign persons, tax-exempt organizations,
insurance companies, financial institutions, and dealers in stock and
securities.
4. No opinion is expressed as to any transaction other than the Merger as
described in the Agreement or to any transaction whatsoever, including the
Merger, if all the transactions described in the Agreement are not consummated
in accordance with the terms of the Agreement without waiver, breach or
amendment of any provision thereof, or if all of the certifications,
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
certifications, representations, warranties, statements, 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.
5. This opinion is only for the benefit of Empyrean Wyoming and the
shareholders of Empyrean Wyoming who do not exercise their dissenters' rights in
connection with the Merger, and may not be relied upon by any other person, firm
or entity for any purpose without our express written consent.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement on Form S-4 (SEC File No. 333-84147), including
amendments thereto, and to the use of our name in the prospectus included in the
Registration Statement under the caption "Legal Matters" and to the reference to
our opinion elsewhere in the Registration Statement. Other than as specified
above, this letter may not be paraphrased, quoted, summarized, duplicated or
reproduced in whole or in part.
Yours very truly,
/s/ BENESCH, FRIEDLANDER,
COPLAN & ARONOFF LLP
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