EXHIBIT 8.2
[SHEARMAN & STERLING LETTERHEAD]
September 24, 1999
Halter Marine Group, Inc.
00000 Xxxxxxxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Agreement and Plan of Merger between
Xxxxxx Xxxxxxx International Inc. and Halter Marine Group, Inc.
dated as of June 1, 1999, as amended September 14, 1999
Ladies and Gentlemen:
You have requested our opinion as to certain United States federal
income tax consequences of the merger (the "Merger") of Halter Marine Group,
Inc., a Delaware corporation ("Halter Marine"), with and into Xxxxxx Xxxxxxx
International Inc., a Mississippi corporation ("Xxxxxx Xxxxxxx"). The Merger is
being consummated pursuant to the Agreement and Plan of the Merger, dated as of
June 1, 1999, as amended September 14, 1999, between Xxxxxx Xxxxxxx and Halter
Marine (the "Merger Agreement"). Unless otherwise defined, capitalized terms
used herein have the meanings assigned to them in the Merger Agreement. At your
request, in connection with the filing of the Registration Statement, we are
rendering our opinion concerning certain federal income tax consequences of the
Merger.
In connection with rendering our opinion, we have reviewed the Merger
Agreement, including the Exhibits thereto, the Proxy Statement/Prospectus
constituting part of the Registration Statement on Form S-4 filed with the
Securities and Exchange Commission on the date hereof, and such other documents
and corporate records as we have deemed necessary or appropriate as a basis
therefor. We have assumed that the representations and warranties contained in
the Merger Agreement were true, correct and complete when made and will continue
to be true, correct and complete through the Effective Time, and that the
parties have complied with and, if applicable, will continue to comply with the
covenants contained in the Merger Agreement. We also have assumed that
statements as to factual matters contained in the Proxy Statement/Prospectus are
true, correct and complete, and will continue to be true, correct and complete
through the Effective Time. Finally, we have assumed that the representations
and covenants to be made by Halter Marine and by Xxxxxx Xxxxxxx contained in tax
certificates substantially in the form of Appendices A and B
EX 8.2 - Page 1
attached hereto will be provided to us at the Effective Time, and we have
assumed that such representations will be true, correct and complete through the
Effective Time and that such covenants will be complied with in all material
respects.
Based upon the foregoing, in reliance thereon and subject thereto, and
based upon the Internal Revenue Code of 1986, as amended (the "Code"), the
Treasury Regulations promulgated thereunder, judicial decisions, revenue rulings
and revenue procedures of the Internal Revenue Service, and other administrative
pronouncements, all as in effect on the date hereof, and assuming that the
Merger and related transactions will be consummated in accordance with the terms
of the Merger Agreement and that the Merger will qualify as a statutory merger
under applicable state law, it is our opinion that the Merger will qualify as a
reorganization within the meaning of Section 368(a) of the Code, and that each
of Halter Marine and Xxxxxx Xxxxxxx will be a party to such reorganization
within the meaning of Section 368(b) of the Code. Furthermore, we hereby
confirm that the discussion set forth under the caption "Material U.S. Federal
Income Tax Consequences" in the Proxy Statement/Prospectus, insofar as such
discussion constitutes statements of United States federal income tax law or
legal conclusions, subject to the assumptions, limitations and qualifications
set forth therein, accurately reflects our opinion of the material United States
federal income tax consequences of the Merger.
No opinion is expressed as to any matter not specifically addressed
above, including the accuracy of the representations or reasonableness of the
assumptions relied upon by us in rendering the opinion set forth above. Our
opinion is based on current United States federal income tax law and
administrative practice and we do not undertake to advise you as to any future
changes in United States federal income tax law or administrative practice that
may affect our opinion unless we are specifically retained to do so. We consent
to the use of this opinion as an Exhibit to the Proxy Statement/Prospectus, and
to the references to Shearman & Xxxxxxxx under the captions "Material U.S.
Federal Income Tax Consequences" and "Legal Matters" in the Proxy
Statement/Prospectus.
Very truly yours,
/s/ Xxxxxxxx & Xxxxxxxx
MKW/CMLP
EX 8.2 - Page 2
APPENDIX A
XXXXXX XXXXXXX INTERNATIONAL INC.
000 XXXX XXXXXXX XXXXXX, 0XX XXXXX
XXXXXXX, XXXXXXXXXXX 00000
[DATE]
Xxxxxxx & Xxxxx X.X.X.
000 Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
In connection with the opinions to be delivered pursuant to Sections
7.02(c) and 7.03(d) of the Agreement and Plan of Merger (the "Merger
Agreement"), dated June 1, 1999 as amended September 14, 1999, by and between
Halter Marine Group, Inc., a Delaware corporation ("Halter Marine"), and Xxxxxx
Xxxxxxx International Inc., a Mississippi corporation ("Xxxxxx Xxxxxxx"), with
respect to the merger of Halter Marine with and into Xxxxxx Xxxxxxx (the
"Merger"), the undersigned officer of Xxxxxx Xxxxxxx does hereby make the
following certification and representations on behalf of Xxxxxx Xxxxxxx as of
the date hereof. Terms not otherwise defined herein shall have the meanings
ascribed to them in the Merger Agreement or Proxy Statement/Prospectus of Xxxxxx
Xxxxxxx, Registration No. 333-________.
1. I certify to you that I am the ________________________________
of Xxxxxx Xxxxxxx. I am familiar with the transactions contemplated by,
and the terms and provisions of, the Merger Agreement, I have personal
knowledge of the matters covered by the representations made herein, and I
am authorized to make these representations on behalf of Xxxxxx Xxxxxxx.
2. The fair market value of the Xxxxxx Xxxxxxx Common Stock and cash
in lieu of fractional shares of Xxxxxx Xxxxxxx Common Stock, if any,
received by each Halter Marine stockholder in the Merger will be
approximately equal to the fair market value of the Halter Marine Common
Stock surrendered in the exchange.
EX 8.2 - Page 3
3. Except for fractional share interests, Xxxxxx Xxxxxxx has no plan
or intention to redeem or reacquire, or cause any person related to Xxxxxx
Xxxxxxx to acquire, any of the shares of Xxxxxx Xxxxxxx Common Stock issued
in the Merger. To the best of the knowledge of the management of Xxxxxx
Xxxxxxx, no person related to Xxxxxx Xxxxxxx and no person acting as an
intermediary for Xxxxxx Xxxxxxx or such a related person has a plan or
intention to acquire any of the Xxxxxx Xxxxxxx Common Stock issued in the
Merger. For purposes of this representation, and the following
representations, a person is related to Xxxxxx Xxxxxxx if such person and
Xxxxxx Xxxxxxx would be treated as related persons within the meaning of
Treasury Regulation Section 1.368-1(e)(3), (4) and (5).
4. Xxxxxx Xxxxxxx has no plan or intention to sell or otherwise
dispose of any of the assets of Halter Marine acquired in the Merger,
except for dispositions made in the ordinary course of business or
transfers described in Treasury Regulations Section 1.368-2(k)(1).
5. Following the Merger, Xxxxxx Xxxxxxx will continue the historic
business of Halter Marine or use a significant portion of Halter Marine's
historic business assets in a business within the meaning of Treasury
Regulation Section 1.368-1(d). For purposes of this representation, Xxxxxx
Xxxxxxx will be deemed to satisfy this requirement if (a) the members of
Xxxxxx Xxxxxxx'x qualified group (as defined in Treasury Regulation Section
1.368-1(d)(4)(ii)), in the aggregate, continue the historic business of
Halter Marine or use a significant portion of Halter Marine's historic
business assets in a business, or (b) the foregoing activities are
undertaken by a partnership in which (i) the members of Xxxxxx Xxxxxxx'x
qualified group, in the aggregate, own at least a 33 1/3 percent capital
and/or profits interest, or (ii) one or more members of the qualified group
has active and substantial management functions as a partner with respect
to the partnership business and the members of the qualified group, in the
aggregate, own at least a 20 percent capital and/or profits interest in the
partnership.
6. Xxxxxx Xxxxxxx, Halter Marine and the Halter Marine stockholders
will pay their respective expenses, if any, incurred in connection with the
Merger.
7. There is no intercorporate indebtedness existing between Xxxxxx
Xxxxxxx and Halter Marine that was issued, acquired or will be settled at a
discount.
8. Xxxxxx Xxxxxxx is not an investment company as defined in Section
368(a)(2)(F)(iii) and (iv) of the Code.
9. The fair market value of the assets of Halter Marine transferred
to Xxxxxx Xxxxxxx will equal or exceed the sum of the liabilities assumed
by Xxxxxx Xxxxxxx plus the amount of liabilities, if any, to which the
transferred assets are subject.
EX 8.2 - Page 4
10. Except for the payment of cash in lieu of issuing fractional
shares of Xxxxxx Xxxxxxx Common Stock, neither Xxxxxx Xxxxxxx nor a person
related to Xxxxxx Xxxxxxx will, in connection with the Merger, acquire
Halter Marine Common Stock with consideration other than Xxxxxx Xxxxxxx
Common Stock. For purposes of this representation, Halter Marine Common
Stock redeemed for cash or other property furnished by Xxxxxx Xxxxxxx will
be considered as acquired by Xxxxxx Xxxxxxx. Further, no liabilities of
Halter Marine stockholders will be assumed by Xxxxxx Xxxxxxx, nor will any
Halter Marine Common Stock be subject to any liabilities.
11. The payment of cash in lieu of issuing fractional shares of
Xxxxxx Xxxxxxx Common Stock is solely for the purpose of avoiding the
expense and inconvenience to Xxxxxx Xxxxxxx of issuing fractional shares
and does not represent separately bargained-for consideration. The total
cash consideration that will be paid in the Merger to Halter Marine
stockholders instead of issuing fractional shares of Xxxxxx Xxxxxxx Common
Stock will not exceed one percent of the total consideration that will be
issued in the Merger to Halter Marine stockholders in exchange for their
shares of Halter Marine Common Stock. The fractional share interests of
each Halter Marine stockholder will be aggregated and no Halter Marine
stockholder will receive cash in an amount equal to or greater than the
value of one full share of Xxxxxx Xxxxxxx Common Stock.
12. None of the compensation received by any stockholder-employees of
Halter Marine will be separate consideration for, or allocable to, any of
their shares of Halter Marine Common Stock to be surrendered in the Merger.
None of the shares of Xxxxxx Xxxxxxx Common Stock to be received by any
stockholder-employee will be separate consideration for, or allocable to,
any employment agreement, and the compensation paid to any stockholder-
employee will be for services actually rendered and will be commensurate
with amounts paid to third parties bargaining at arm's length for similar
services.
I understand, and Xxxxxx Xxxxxxx understands, that Xxxxxxx & Xxxxx L.L.P.
and Xxxxxxxx & Xxxxxxxx will rely on these representations and assume them to be
accurate as of the Effective Time, without further inquiry on their part, in
rendering their opinions with respect to the Merger and that the inaccuracy of
any of these representations may negatively affect those opinions, and I hereby
commit to inform them if, for any reason, any of the foregoing representations
ceases to be true at or prior to the Effective Time.
Very truly yours,
Xxxxxx Xxxxxxx International Inc.
By: ________________________________
Name: ______________________________
Title: _____________________________
EX 8.2 - Page 5
APPENDIX B
HALTER MARINE GROUP, INC.
00000 XXXXXXXXXX XXXXXX XXXX
XXXXXXXX, XXXXXXXXXXX 00000
[DATE]
Xxxxxxx & Xxxxx X.X.X.
000 Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
In connection with the opinions to be delivered pursuant to Sections
7.02(c) and 7.03(d) of the Agreement and Plan of Merger (the "Merger
Agreement"), dated June 1, 1999 as amended September 14, 1999, by and between
Halter Marine Group, Inc., a Delaware corporation ("Halter Marine"), and Xxxxxx
Xxxxxxx International Inc., a Mississippi corporation ("Xxxxxx Xxxxxxx"), with
respect to the merger of Halter Marine with and into Xxxxxx Xxxxxxx (the
"Merger"), the undersigned officer of Halter Marine does hereby make the
following certification and representations on behalf of Halter Marine as of the
date hereof. Terms not otherwise defined herein shall have the meanings
ascribed to them in the Merger Agreement or Proxy Statement/Prospectus of Xxxxxx
Xxxxxxx, Registration No. 333-________.
1. I certify to you that I am the ________________________________
of Halter Marine. I am familiar with the transactions contemplated by, and
the terms and provisions of, the Merger Agreement, I have personal
knowledge of the matters covered by the following representations, and I am
authorized to make the following representations on behalf of Halter
Marine.
2. The fair market value of the Xxxxxx Xxxxxxx Common Stock and cash
in lieu of fractional shares of Xxxxxx Xxxxxxx Common Stock, if any,
received by each Halter Marine stockholder in the Merger will be
approximately equal to the fair market value of the Halter Marine Common
Stock surrendered in the exchange.
EX 8.2 - Page 6
3. Prior to and in connection with the Merger, (i) none of the Halter
Marine Common Stock will be redeemed, (ii) no extraordinary distribution
will be made with respect to Halter Marine Common Stock, and (iii) none of
the Halter Marine Common Stock will be acquired by a person related (within
the meaning of Treasury Regulations Section 1.368-1(e)(3), (4) and (5)) to
Halter Marine.
4. The liabilities of Halter Marine assumed by Xxxxxx Xxxxxxx and the
liabilities to which the transferred assets of Halter Marine are subject
were incurred by Halter Marine in the ordinary course of its business.
5. Xxxxxx Xxxxxxx, Halter Marine and the Halter Marine stockholders
will pay their respective expenses, if any, incurred in connection with the
Merger.
6. There is no intercorporate indebtedness existing between Xxxxxx
Xxxxxxx and Halter Marine that was issued, acquired or will be settled at a
discount.
7. Halter Marine is not an investment company as defined in Section
368(a)(2)(F)(iii) and (iv) of the Code.
8. Halter Marine is not under the jurisdiction of a court in a Title
11 case or similar case within the meaning of Section 368(a)(3)(A) of the
Code.
9. The fair market value of the assets of Halter Marine transferred
to Xxxxxx Xxxxxxx will equal or exceed the sum of the liabilities assumed
by Xxxxxx Xxxxxxx plus the amount of liabilities, if any, to which the
transferred assets are subject.
10. The payment of cash in lieu of issuing fractional shares of
Xxxxxx Xxxxxxx Common Stock is solely for the purpose of avoiding the
expense and inconvenience to Xxxxxx Xxxxxxx of issuing fractional shares
and does not represent separately bargained-for consideration. The total
cash consideration that will be paid in the Merger to Halter Marine
stockholders instead of issuing fractional shares of Xxxxxx Xxxxxxx Common
Stock will not exceed one percent of the total consideration that will be
issued in the Merger to Halter Marine stockholders in exchange for their
shares of Halter Marine Common Stock. The fractional share interests of
each Halter Marine stockholder will be aggregated and no Halter Marine
stockholder will receive cash in an amount equal to or greater than the
value of one full share of Xxxxxx Xxxxxxx Common Stock.
11. None of the compensation received by any stockholder-employees of
Halter Marine will be separate consideration for, or allocable to, any of
their shares of Halter Marine Common Stock to be surrendered in the Merger.
None of the shares of Xxxxxx Xxxxxxx Common Stock to be received by any
stockholder-employee will be separate consideration for, or allocable to,
any employment agreements, and the compensation paid
EX 8.2 - Page 7
to any stockholder-employee will be for services actually rendered and will
be commensurate with amounts paid to third parties bargaining at arm's
length for similar services.
I understand, and Halter Marine understands, that Xxxxxxx & Xxxxx
L.L.P. and Xxxxxxxx & Xxxxxxxx will rely on these representations and assume
them to be accurate as of the Effective Time, without further inquiry on their
part, in rendering their opinions with respect to the Merger and that the
inaccuracy of any of these representations may negatively affect those opinions,
and I hereby commit to inform them if, for any reason, any of the foregoing
representations ceases to be true at or prior to the Effective Time.
Very truly yours,
Halter Marine Group, Inc.
By: ___________________________
Name: _________________________
Title: ________________________
EX 8.2 - Page 8
