Exhibit 8.1
January 12, 2000
Group Maintenance America Corp.
0 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Dear Ladies and Gentlemen:
Pursuant to an Agreement and Plan of Merger dated as of November 2, 1999 (the
"Agreement") between Group Maintenance America Corp., a Texas corporation (the
"Texas Company") and Building One Services Corporation, a Delaware corporation
(the "Delaware Company" and together with the Texas Company, the "Companies"),
the Delaware Company will merge with and into the Texas Company and the separate
corporate existence of the Delaware Company shall thereupon cease, with the
Texas Company being the surviving corporation of the merger (the "Merger").
Defined terms used herein and not otherwise defined shall have the meanings
ascribed to such term in the Agreement.
We have acted as counsel to the Texas Company in connection with the Merger and
in that connection you have requested our opinion regarding the material federal
income tax consequences of the Merger to holders of shares of the Texas and
Delaware Companies' Common Stock and to the Companies. Our opinion only
addresses the federal income tax consequences of the Merger to holders of
Delaware Company Common Stock that hold their shares as capital assets and does
not address all aspects of federal income taxation that may be important to such
holders in light of their particular circumstances. Further, our opinion does
not address all aspects of federal income taxation that may be applicable to
certain holders subject to special rules, such as: (i) holders who are not
United States persons; (ii) financial institutions; (iii) tax-exempt
organizations; (iv) insurance companies; (v) dealers or brokers in securities;
(vi) holders who held their Delaware Company or Texas Company stock as part of a
hedge, appreciated financial position, straddle, or conversion transaction; or
(vii) holders who acquired their Delaware Company or Texas Company stock
pursuant to the exercise of employee stock options or otherwise as compensation.
In rendering our opinion, we have examined the Agreement, the registration
Statement of the Texas Company ("the
Registration Statement"), the joint proxy statement/prospectus of the Companies
("the Proxy Statement"), certain factual representations contained in Officer's
Certificates of the Delaware Company and the Texas Company dated as of today's
date which have been delivered to us for purposes of this opinion (the
"Officer's Certificates") and such other documents and corporate records as we
have deemed necessary or appropriate for purposes of this opinion. In addition,
we have assumed: (i) the Merger will be consummated in the manner contemplated
in the Registration Statement and the Proxy Statement and in accordance
with the provisions of the Agreement, (ii) the statements concerning the Merger
and related transactions set forth in the Registration Statement and the
Proxy Statement are accurate and complete, (iii) the representations in the
Officer's Certificates dated as of today's date are accurate and complete and
will be accurate and complete as of the effective time of the Merger, and (iv)
any representations in the Officer's Certificates that are qualified by the
phrases "to the best knowledge," "has no knowledge," or similar phrases are, in
each case, correct without such qualification.
Under current law, and on the basis and subject to (i) the accuracy of the
statements and representations contained in the materials referred to above and
the above assumptions and (ii) our considerations of such other matters as we
have deemed necessary, our opinion of the material federal income tax
consequences to holders of Texas and Delaware Company Common Stock and the
Companies is as follows:
(A) the merger of the Delaware Company with and into the Texas Company
will be treated for federal income tax purposes as a reorganization within the
meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended, (the
"Code"), and the Texas Company and the Delaware Company will each be a party to
the reorganization within the meaning of Section 368(b) of the Code;
(B) no gain or loss will be recognized for federal income tax purposes by
the Texas Company, the Delaware Company, holders of Texas Company Common Stock,
or holders of Delaware Company Common Stock as a result of the Merger, except
with respect to cash received in lieu of fractional shares by holders of
Delaware Company Common Stock and with respect to cash received by holders of
Texas Company Common Stock as a result of the exchange of their shares pursuant
to the Exchange Agreement;
(C) the aggregate tax basis of shares the Texas Company Common Stock
received by a holder of the Delaware Company Common Stock in the Merger will be
the same as such holder's aggregate tax basis of the Delaware Company Common
Stock surrendered in the Merger, reduced by any such tax basis allocable to
fractional shares of the Texas Company Common Stock for which cash is received
in lieu of such fractional share;
(D) the holding period of Texas Company Common Stock received by former
Delaware Company shareholders in the Merger will include the period during which
such shareholder held the Delaware Company Common Stock exchanged in the Merger
if such shareholder held such Delaware Company Common Stock as a capital asset;
and
(E) a holder of Delaware Company Common Stock who receives cash in lieu
of fractional shares of the Texas Company Common Stock in the Merger will
recognize gain or loss measured by
the difference between the amount of cash received and the portion of such
holder's aggregate tax basis allocable to such fractional share. Any such gain
or loss generally will be capital gain or loss if the Delaware Company Common
Stock surrendered in the Merger was held as a capital asset, and will be long-
term capital gain or loss if such Delaware Company Common Stock has been held
for more than one year as of the date of the closing of the Merger.
You have not requested, and we do not express, an opinion concerning any other
tax consequences of the Merger.
Our opinion expresses our views only as to the U.S. federal income tax laws in
effect as of the date hereof. It represents our best legal judgment as to the
matters addressed in our opinion, but is not binding on the Internal Revenue
Service or the courts. Accordingly, no assurance can be given that our opinion
will be respected by the Internal Revenue Service or, if contested, would be
sustained by a court. Furthermore, the authorities upon which we rely are
subject to change either prospectively or retroactively, and any change in such
authorities or variation or difference in the facts from those on which we rely
and assume as correct, as set forth above, might affect the conclusion stated.
This opinion is expressed as of the date hereof, and we are under no obligation
to supplement or revise our opinion to reflect any changes (including changes
that have retroactive effect) (i) in applicable law, or (ii) in any information,
document, corporate record, covenant, statement, representation, or assumption
stated therein that becomes untrue or incorrect.
Our opinion is not to be used, circulated, quoted or otherwise referred to for
any purpose without our express written permission. 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 "Material United States Federal Income
Tax Considerations of the Merger" in the Proxy Statement 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/ Xxxxxxxxx & Xxxxxxxxx, L.L.P.
Xxxxxxxxx & Xxxxxxxxx, L.L.P.
