EXHIBIT 8.2
[XXXXXX & AUSTIN LETTERHEAD]
March 19, 1997
Xxxx Xxxxx Bancshares, Inc.
0000 Xxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
We refer to the Agreement and Plan of Reorganization dated October 27,
1996, as amended (the "Agreement"), among Mercantile Bancorporation Inc., a
Missouri corporation ("Mercantile"), Ameribanc, Inc., a Missouri corporation and
a direct, wholly owned subsidiary of Mercantile ("Merger Sub"), and Xxxx Xxxxx
Bancshares, Inc., a Missouri corporation (together with its predecessors,
"Bancshares"), which provides for the merger (the "Merger") of Bancshares with
and into Merger Sub on the terms and conditions therein set forth, the time at
which the Merger becomes effective being hereinafter referred to as the
"Effective Time." Capitalized terms used but not defined herein have the
meanings specified in the Agreement.
As provided in the Agreement, at the Effective Time, by reason of the
Merger: (i) each share of common stock of Merger Sub issued and outstanding
immediately prior to the Effective Time will remain outstanding and will be
unchanged after the Merger and will thereafter constitute all of the issued and
outstanding stock of Merger Sub as the Surviving Corporation in the Merger; and
(ii) each share of common stock of Bancshares issued and outstanding immediately
prior to the Effective Time, other than shares held by holders of Bancshares
common stock who exercise dissenters' rights (as described below), will cease to
be outstanding and will be converted into and become the right to receive .952
of a share of common stock, par value $5.00 per share, of Mercantile and the
associated Rights under the Mercantile Rights Agreement; provided, however, that
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any shares of Bancshares Common Stock held by Bancshares or any of its wholly
owned Subsidiaries, or Mercantile or any of its wholly owned Subsidiaries, in
each case other than in a fiduciary capacity or as a result of debts previously
contracted, will be cancelled and will not represent capital stock of the
Surviving Corporation and will not be exchanged for shares of Mercantile Common
Stock. Notwithstanding clause (ii) above, each holder of Bancshares Common Stock
who otherwise would have been entitled to a fraction of a share of Mercantile
Common Stock will receive cash in lieu thereof. Those holders of Bancshares
Common Stock exercising dissenters' rights under the Missouri Act will be
entitled to payment of the fair value of their Bancshares Common Stock.
Accordingly, immediately following the Merger, the former holders of
Bancshares Common Stock (other than those who exercise dissenters' rights) will
hold Mercantile Common Stock issued in the Merger (and cash in lieu of any
fractional shares of Mercantile Common Stock) and Merger Sub, as the Surviving
Corporation, will be a wholly owned subsidiary of Mercantile. The Merger and the
Agreement are more fully described in Mercantile's Registration Statement on
Form S-4 (the "Registration Statement") relating to the registration of shares
of Mercantile Common Stock, which is being filed by Mercantile with the
Securities and Exchange Commission pursuant to the Securities Act of l933, as
amended. The Registration Statement includes the Joint Proxy
Statement/Prospectus (the "Prospectus") of Mercantile and Bancshares.
In rendering the opinions expressed below, we have relied upon the
accuracy of the facts, information and representations and the completeness of
the covenants contained in the Agreement, the Registration Statement (including
the Prospectus) and such other documents as we have deemed relevant and
necessary. Such opinions are conditioned, among other things, not only upon
such accuracy and completeness as of the date hereof, but also the continuing
accuracy and completeness thereof as of the Effective Time. Moreover, we have
assumed the absence of any change to any of such instruments and documents
between the date hereof and the Effective Time.
We have assumed the authenticity of all documents submitted to us as
originals, the genuineness of all signatures, the legal capacity of all natural
persons and the conformity with original documents of all copies submitted to us
for our examination. We have also assumed: (i) that the transactions related to
the Merger or contemplated by the Agreement will be consummated (A) in
accordance with the Agreement and (B) as described in the Prospectus; (ii) that
the Merger will qualify as a statutory merger under the laws of the State of
Missouri; (iii) the accuracy as of the date hereof, and the continuing accuracy
as of the Effective Time, of the written statements made by executives of
Mercantile and Bancshares contained in the Mercantile Tax Certificate and the
Bancshares Tax Certificate, respectively, attached as exhibits hereto (the
accuracy of which in no case have we investigated or verified), and (iv) the
accuracy as of the date hereof, and the continuing accuracy as of the Effective
Time, of representations of certain holders of Bancshares Common Stock contained
in the Support Agreements referred to in the Agreement (the accuracy of which in
no case have we investigated or verified).
In rendering the opinions expressed below, we have considered the
applicable provisions of the Internal Revenue Code
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of 1986, as amended (the "Code"), Regulations promulgated thereunder by the
United States Treasury Department (the "Regulations"), pertinent judicial
authorities, rulings of the Internal Revenue Service and such other authorities
as we have considered relevant. It should be noted that the Code, the
Regulations and such judicial decisions, administrative interpretations and
other authorities are subject to change at any time and, in some circumstances,
with retroactive effect; and any such change could affect the opinions stated
herein.
Based upon and subject to the foregoing, it is our opinion, as counsel
for Bancshares, that for federal income tax purposes:
(1) the Merger will constitute a "reorganization" within the meaning
of Section 368(a) of the Code, and Bancshares, Merger Sub and Mercantile
will each be a party to the reorganization within the meaning of Section
368(b) of the Code;
(2) no gain or loss will be recognized by Bancshares or Merger Sub as
a result of the Merger;
(3) no gain or loss will be recognized by the stockholders of
Bancshares upon the conversion of their Bancshares Common Stock into
Mercantile Common Stock pursuant to the Merger, except with respect to
cash, if any, received in lieu of fractional shares of Mercantile Common
Stock;
(4) the aggregate tax basis of the shares of Mercantile Common Stock
received in exchange for shares of Bancshares Common Stock pursuant to the
Merger (including a fractional share of Mercantile Common Stock for which
cash is paid) will be the same as the aggregate tax basis of such shares of
Bancshares Common Stock;
(5) the holding period for shares of Mercantile Common Stock issued
in exchange for shares of Bancshares Common Stock pursuant to the Merger
will include the holder's holding period for such shares of Bancshares
Common Stock, provided such shares of Bancshares Common Stock were held as
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capital assets by the holder at the Effective Time; and
(6) a stockholder of Bancshares who receives cash in lieu of a
fractional share of Mercantile Common Stock will recognize gain or loss
equal to the difference, if any, between such stockholder's basis in the
fractional share (determined as provided in paragraph (4) above) and the
amount of cash received.
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This opinion may not be applicable to Bancshares shareholders who
received their Bancshares Common Stock pursuant to the exercise of employee
stock options or otherwise as compensation or who are not citizens or residents
of the United States.
Except as expressly set forth in paragraphs (1) through (6),
inclusive, you have not requested, and we do not herein express, any opinion
concerning the tax consequences of, or any other matters related to, the Merger.
We assume no obligation to update or supplement this letter to reflect
any facts or circumstances which may hereafter come to our attention with
respect to the opinions expressed above, including any changes in applicable law
which may hereafter occur.
We hereby consent to the filing of this letter as an Exhibit to the
Registration Statement and to all references to our Firm included in or made a
part of the Registration Statement.
Very truly yours,
/s/ Sidley & Austin
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