HELLER EHRMAN LETTERHEAD]
EXHIBIT
8.1
[XXXXXX
XXXXXX LETTERHEAD]
_______,
2005
Xxxxxx
International Inc.
Suite
2840, 000 Xxxx Xxxxxxx Xxxxxx
Vancouver,
British Columbia, Canada V6B 4N8
Ladies
and Gentlemen:
This
opinion is being delivered to you in connection with the Agreement and Plan of
Merger dated as of July __, 2005 (the “Merger
Agreement”), by
and among Xxxxxx International Inc., a Massachusetts trust organized under the
laws of Washington (“Mercer”),
Mercer Delaware Inc., a Delaware corporation ("Mercer-DE"), and
Xxxxxx International Regco Inc., a Washington corporation ("Mercer-WA").
Pursuant to the Merger Agreement and the registration statement on Form S-4
filed with the Securities and Exchange Commission, as amended at any time to and
including the date hereof (the “Registration
Statement”),
Mercer will merge with and into Mercer-DE, followed immediately thereafter by
Mercer-DE merging with and into Mercer-WA (collectively, the "Conversion").
Except as
otherwise provided, capitalized terms used but not defined in this opinion have
the meanings set forth in the Merger Agreement and the Registration Statement.
All section references, unless otherwise indicated, are to the Internal Revenue
Code of 1986, as amended (the “Code”).
You have
requested our opinion concerning the description of the material U.S. federal
income tax consequences of the Conversion described in the Registration
Statement. In delivering this opinion, we have reviewed and relied upon (without
any independent investigation) the facts, statements, descriptions and
representations set forth in the Merger Agreement (including exhibits thereto),
the Registration Statement (including exhibits thereto), and such other
documents pertaining to the Conversion as we have deemed necessary or
appropriate. We also have relied upon (without any independent investigation) a
certificate setting forth certain representations executed by an officer of
Mercer (the “Tax
Representation Letter”).
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 the original documents, and there has been (or will be by the
Effective Time of the Conversion) due execution and delivery of all documents
where due execution and delivery are prerequisites to effectiveness
thereof.
Xxxxxx
International Inc.
_____,
2005
Page
2
2. Any
representation or statement in any document referred to above made “to the
knowledge of,” “to the best of the knowledge” or otherwise similarly qualified
is correct without such qualifica-tion. As to all matters in which a person or
entity making a representation in any document referred to above has represented
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.
3. All
statements, descriptions and representations contained in any of the documents
referred to herein or otherwise made to us are true and correct in all material
respects and will continue to be true and correct in all material respects as of
the Effective Time of the Conversion and all other relevant times, and no
actions have been (or will be) taken which are inconsistent with such
representations.
4. The
Conversion will be reported by Mercer, Mercer-DE and Mercer-WA for federal and
state income tax purposes in a manner consistent with the opinion set forth
below.
5. The
Conversion will be consummated in accordance with the Merger Agreement (and
without any waiver, breach or amendment of any of the provisions thereof), and
the Registration Statement, and will be effective under the applicable state
laws.
Based on
our examination of the foregoing items and subject to the assumptions,
exceptions, limitations and qualifications set forth herein and in the
Registration Statement, we are of the opinion that the discussion set forth in
the Registration Statement under the heading “Material U.S. Federal Income Tax
Consequences of the Conversion” constitutes, in all material respects, a
fair and accurate summary of the United States federal income tax consequences
of the Conversion generally applicable to a Mercer shareholder.
This
opinion represents and is based upon our best judgment regarding the application
of federal income tax laws arising under the Code, existing judicial decisions,
administrative regu-lations and published rulings and procedures, all as in
effect as of the date of this opinion. 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 conclusions stated herein. Nevertheless, we
undertake no responsibility to advise you of any new developments in the
application or interpretation of the federal income tax laws.
Xxxxxx
International Inc.
_____,
2005
Page
3
This
opinion concerning certain of the United States federal income tax consequences
of the Conversion is limited to the specific United States federal income tax
consequences presented above, and does not address any other federal, state,
local or foreign tax consequences that may result from the Conversion or any
other transaction (including any transaction undertaken in connection with the
Conversion, other than the Proposed Delaware Reincorporation and the Proposed
Washington Reincorporation).
No
opinion is expressed as to any transaction other than the Conversion as
described in the Merger Agreement and the Registration Statement or to any
transaction whatsoever, including the Conversion, if all the transactions
described in the Merger Agreement and the Registration Statement are not
consummated in accordance with the terms of such Agreement and the Registration
Statement and without waiver or breach of any material provision thereof or if
all of the 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 statements, representations, warranties 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.
We
consent to the use of this opinion as an exhibit to the Registration Statement,
to references to this opinion in the Registration Statement and to the use of
our name in the Registration Statement. In giving
this consent, we do not admit that we are within the category of persons whose
consent is required under Section 7 of the Securities Act of 1933, as amended
(the “Securities
Act”) or the
rules or regulations promulgated thereunder or that we are experts with respect
to any portions of the S-4 Registration Statement within the meaning of the term
“experts” as used in the Securities Act, or the rules or regulations promulgated
thereunder. The filing of this opinion as an exhibit to the S-4 Registration
Statement and the references to the opinion and our firm therein are not
intended to create liability under applicable state law to any person other than
Mercer, our client.
Very
truly yours,
XXXXXX
XXXXXX LLP
