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[COOLEY GODWARD LLP LETTERHEAD]
EXHIBIT 8.1
October 30, 2000
Exelixis, Inc.
170 Harbor Way
P.O. Box 511
South San Francisco, CA 94083
Ladies and Gentlemen:
This opinion is being delivered to you in connection with the filing of a
registration statement (the "Registration Statement") on Form S-4, which
includes the Proxy Statement and Prospectus relating to the Agreement and Plan
of Merger and Reorganization dated as of September 7, 2000 (the "Reorganization
Agreement") by and among Exelixis, Inc., a Delaware corporation ("Parent"),
Athens Acquisition Corp., a Delaware corporation and wholly owned subsidiary of
Parent ("Merger Sub"), and Agritope, Inc., a Delaware corporation (the
"Company").
Except as otherwise provided, 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, as
amended (the "Code").
We have acted as counsel to Parent in connection with the Merger. 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 representation letters dated October 30, 2000, and
delivered to us by Parent, Merger Sub and the Company (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 Merger and the other transactions contemplated by the
Reorganization Agreement as we have deemed necessary or appropriate.
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 Merger, 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 Merger will be reported by Parent and the Company on their
respective federal income tax returns in a manner consistent with the opinion
set forth below;
(E) The Merger 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;
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(F) The $750,000 note issued by the Company to Parent prior to the date
hereof constitutes debt and not equity of the Company:
(G) Any representation or statement made "to the knowledge of" or similarly
qualified is correct without such qualification; and
(H) The opinion, rendered by Tonkon Torp LLP to the Company 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 Merger will be a
reorganization within the meaning of Section 368(a) of the Internal Revenue
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 Federal Income Tax Consequences" contained in the
Registration Statement and believe that, insofar as it relates to statements of
law and legal conclusions, it sets forth the material United States federal
income tax considerations generally applicable to the Merger and is correct in
all material respects.
This opinion does not address the various state, local or foreign tax
consequences that may result from the Merger or the other transactions
contemplated by the Reorganization Agreement and does not address the federal
tax consequences of any transaction other than the Merger as described in the
Reorganization Agreement. In addition, no opinion is expressed as to any federal
income tax consequence of the Merger or the other transactions contemplated by
the 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
Merger, 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 Merger 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 Internal Revenue 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 Registration
Statement. It is intended for the benefit of Parent 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 Federal
Income Tax Consequences" 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.
Sincerely,
Cooley Godward LLP
/s/ ROBERT H. MILLER
Robert H. Miller
