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EXHIBIT 8.1
(XXXX, XXXX, XXXXXXX, XXXXX & XXXX, L.L.P. LETTERHEAD)
December 22, 1997
Southern Mineral Corporation
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Gentlemen:
Pursuant to Section 6.1(h) of the Amended and Restated Agreement and
Plan of Merger, dated as of November 17, 1997 (the "Merger Agreement"), by and
among Southern Mineral Corporation, a Nevada corporation ("SMC"), Amerac Energy
Corporation, a Delaware Corporation ("Amerac"), and SMC Acquisition Corp., a
Delaware corporation and wholly owned subsidiary of SMC ("Acquisition Corp."),
our opinion has been requested with respect to certain of the federal income tax
consequences of the merger (the "Merger") of Acquisition Corp. with and into
Amerac. As a result of the Merger, the stockholders of Amerac will receive
shares of SMC voting common stock.
DOCUMENTS EXAMINED
In connection with the rendering of our opinion, we have examined the
following:
1. The Merger Agreement.
2. The Registration Statement on Form S-4 under the Securities
Act of 1933 filed by SMC with respect to the SMC common stock
to be issued in connection with the Merger (the "Registration
Statement") and amendments thereto.
3. Such other documents, records and matters of law as we have
deemed necessary or appropriate in connection with rendering
this opinion.
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December 22, 1997
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In our review and examination of the foregoing, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals and the conformity to original documents of all documents
submitted to us as certified or duplicate copies thereof. We have further
assumed that the execution and delivery of any of the foregoing have been duly
authorized by all necessary corporate action in order to make the foregoing
valid and legally binding obligations of the parties, enforceable in accordance
with their terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws, both state and
federal, affecting the enforcement of creditors' rights or remedies in general
from time to time in effect and by general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at law).
FACTUAL ASSUMPTIONS
In rendering this opinion, we have made the following assumptions as to
factual matters.
1. The representations and warranties of the parties contained in
the documents listed in the section entitled Documents
Examined that may be deemed material to this opinion are all
true in all material respects as of the date hereof.
2. The representations contained in the Representation
Certificates received from Amerac and from SMC and Acquisition
Corp. are all true in all material respects as of the date
hereof.
3. The Merger shall be consummated, and all transactions related
thereto or contemplated by the Merger Agreement and the
Registration Statement shall be consummated in accordance with
the terms and conditions of the applicable documents.
4. The Merger will qualify as a merger under applicable state
law.
LIMITATIONS ON OPINION
The following limitations apply with respect to this opinion:
1. This opinion is based upon the current provisions of the
Internal Revenue Code of 1986, as amended, the Treasury
Regulations promulgated thereunder, and the interpretations
thereof by the Internal Revenue Service and those courts
having jurisdiction over such matters as of the date hereof,
all of which are subject to change either prospectively or
retroactively. No opinion is rendered with respect
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Southern Mineral Corporation
December 22, 1997
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to the effect, if any, of any pending or future legislation
or administrative regulation or ruling which may have a
bearing on any of the foregoing.
2. We have neither been asked to render an opinion with respect
to any federal income tax matters, except those set forth
below, nor have we been asked to render an opinion with
respect to any state or local tax consequences of the Merger.
Accordingly, this opinion should not be construed as applying
in any manner to any tax aspect of the Merger other than set
forth below.
3. All factual assumptions set forth above are material to all
opinions herein rendered and have been relied upon by us in
rendering all such opinions. Any material inaccuracy in any
one or more of the assumed facts may render all or part of
this opinion inapplicable to the Merger.
4. Our opinion is not binding upon either the Internal Revenue
Service or a court of law. Accordingly, no assurance can be
given that either the Internal Revenue Service or a court
would agree with our conclusions.
OPINION
Based upon and subject to the foregoing, it is our opinion that:
1. The Merger should be treated as a reorganization within the
meaning of Section 368(a) of the Code.
2. No gain or loss should be recognized by the stockholders of
Amerac on the exchange of their shares of Amerac stock for
shares of SMC common stock, except with respect to cash
received in lieu of fractional shares of SMC common stock.
The foregoing opinions represent our best judgment as to the likely
conclusions that a court of law would reach with respect to such issues.
This letter and the matters addressed herein are as of the date hereof,
and we undertake no, and hereby disclaim any, obligation to advise you of any
change in any matter set forth herein occurring after the date hereof. This
letter is solely for your benefit and no other persons shall be entitled to rely
upon the opinions herein expressed. This letter is limited to the matters stated
herein and no opinion is implied or may be inferred beyond the matters expressly
stated. Without our prior written consent, this letter may not be quoted in
whole or in part or otherwise referred to in any document and may not be
furnished to any other person or entity.
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We hereby consent to the references made to us in the Joint Proxy
Statement/Prospectus of SMC and Amerac and to the filing of this opinion as an
exhibit to the Registration Statement on Form S-4 of SMC. In giving such consent
we do not hereby admit that we are within the category of the persons whose
consent is required under Section 7 of the Securities Act of 1933, as amended,
or the rules or regulations of the Securities and Exchange Commission
thereunder.
Sincerely yours,
/s/ XXXX, XXXX, XXXXXXX, XXXXX & XXXX, L.L.P.
