DOVER DIXON HORNE PLLC
Exhibit 8.2
DOVER XXXXX XXXXX PLLC
000 X XXXXXXX XXX XXX. 0000
XXXXXX XXXX XX 00000·0000
TELEPHONE (50l) 000-0000
FACSIMILE (000) 000-0000
xxx.xxx-xx.xxx
March 21, 2014
Summit Bancorp, Inc.
P. X. Xxx 000
Xxxxxxxxxxx, XX 00000
| RE: | Agreement and Plan of Merger by and among Bank of the Ozarks, Inc., |
| Bank of the Ozarks, Summit Bancorp, Inc. and Summit Bank |
Ladies and Gentlemen:
We have acted as counsel to Summit Bancorp, Inc., an Arkansas corporation (“Company”), and Summit Bank, and Arkansas state bank (“Company Bank”), in connection with the merger (the “Merger”) of Company with and into Bank of the Ozarks, Inc., an Arkansas corporation (“Buyer”), followed by the merger of Company Bank with and into Bank of the Ozarks (the “Bank Merger”), pursuant to the terms of that certain Agreement and Plan of Merger dated as of January 30, 2014 by and among Bank of the Ozarks, Inc., Bank of the Ozarks, Summit Bancorp, Inc. and Summit Bank (the “Plan”). This opinion is being rendered as required by Section 6.01(e) of the Plan and Item 601(b)(8) of Regulation S-K under the Securities Act of 1933. Capitalized terms used and not otherwise defined in this opinion letter have the respective meanings set forth in the Plan.
We are members of the Bar of the State of Arkansas and have been asked by Company to furnish this opinion letter. In connection with this opinion letter, we have examined and are familiar with originals or copies, certified or otherwise identified to our satisfaction, of (i) the Plan, (ii) the Registration Statement on Form S-4 filed by Buyer with the Securities and Exchange Commission (the “Registration Statement”), and (iii) such other documents, records, resolutions, certificates and other instruments as we have deemed necessary or appropriate in order to enable us to render the opinions set forth herein.
In rendering the opinions set forth herein, we have considered the applicable provisions of the Internal Revenue Code of 1986, as amended (the “Code”), Treasury Regulations, pertinent judicial authorities, interpretive rulings of the Internal Revenue Service and such other authorities as we have considered relevant.
In our examination, we have assumed, without independent investigation or review, that:
(1) All documents submitted to us as originals are authentic, all signatures on all documents are genuine, all documents submitted to us as certified, conformed or photostatic copies conform to the original documents, and the originals of such copies are authentic;
(2) Each document reviewed by us (a) has been or will be fully executed and delivered in substantially the same form, (b) is or will be in full force and effect, and (c) has not been and will not be amended or modified in any respect;
(3) All parties to the documents at all time had and will have full corporate power, authority and capacity to enter into, execute and perform all obligations under those documents and to observe and perform the terms and conditions thereof;
(4) The factual matters, statements and recitations contained in the documents (or otherwise made known to us as of the date hereof) are accurate, true and complete; and
(5) The Merger and the Bank Merger will be effected in accordance with the terms of the Plan.
In rendering our opinion, we have also relied upon certain assumptions and written representations by Buyer and Company.
Based upon the foregoing and subject to the assumptions, limitations, qualifications and exceptions set forth herein, we are of the opinion that:
(a) The Merger constitutes a reorganization as described in § 368(a) of the Code, and Buyer and Company will each be a party to the reorganization within the meaning of §368(b) of the Code. Accordingly, neither Buyer nor Company will recognize taxable income for federal income tax purposes in connection with the Merger.
(b) No gain or loss will be recognized by holders of shares of Company Common Stock as a result of the exchange of such shares for shares of Buyer Common Stock, pursuant to the Merger, except that gain or loss will be recognized on cash, if any, received in lieu of fractional shares and cash received as provided for in the Plan. Any cash received by a shareholder of Company in lieu of a fractional share will be treated as received in exchange for such fractional share and not as a dividend, and any gain or loss recognized as a result of such cash will be capital gain or loss equal to the difference between the cash received and the portion of the shareholder’s basis in the Company Common Stock allocable to such fractional share interest. Any cash received by a shareholder of Company as provided in the Plan that is not received in lieu of fractional shares will be treated as received in an exchange and not as a dividend, and such gain recognized as a result of such cash will be capital gain in an amount equal to the lesser of the cash received or the excess of the amount of cash and the value of the Buyer Common Stock received by such Company shareholder over such Company shareholder’s basis in the Company Common Stock surrendered by such Company shareholder.
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(c) The tax basis of the shares of Buyer Common Stock received by a shareholder of Company will equal the tax basis of such shareholder’s shares of Company Common Stock (reduced by an amount allocable to fractional share interests for which cash is received) exchanged in the Merger, decreased by the amount of cash received in the Merger and increased by the amount of gain recognized as a result of the Merger.
(d) The holding period for the shares of Buyer Common Stock received by a shareholder of Company will include the holding period for the shares of Company Common Stock of such shareholder exchanged in the Merger.
(e) The Bank Merger of Company Bank with and into Buyer Bank constitutes a reorganization as described in § 368(a) of the Code and Company Bank and Buyer Bank will each be a party to the reorganization within the meaning of § 368(b) of the Code. Accordingly, neither Company Bank nor Buyer Bank will recognize taxable income for federal income tax purposes in connection with the Bank Merger.
(f) The discussion contained in the Registration Statement under the caption “Material United States Federal Income Tax Consequences of the Merger—Tax Consequences of the Merger Generally” constitutes our opinion as to the material U.S. federal income tax consequences of the Merger under existing law.
Except as set forth above, we express no opinions as to the tax consequences to any party, whether federal, state, local, or foreign, of the Merger, the Bank Merger or of any transactions related to the Merger, the Bank Merger or otherwise contemplated by the Plan. We do not purport to describe herein all tax consequences that might flow from the Merger or the Bank Merger. The opinions expressed above concern only the effect of the laws (excluding the principles of conflict of laws) of Arkansas and the United States as currently in effect.
We have conclusively assumed that you know of no reason why the opinions set forth herein may be incorrect.
The opinions set forth herein are expressed as of the date hereof and are based upon applicable law and relevant documents as they exist as of the date hereof. We assume no obligations to update or supplement these opinions to reflect any facts that may hereafter come to our attention or any changes in law that may hereafter occur. The opinions set forth herein are limited to matters expressly set forth herein, and no opinion is to be inferred or implied beyond the matters expressly so stated.
We express no opinion as to any matter except those set forth above. The foregoing opinions are for the exclusive reliance by Company and Company shareholders. The opinions set forth herein are rendered solely in connection with the above-referenced transaction, and should not be relied upon in any other transaction, or used, circulated, quoted, published or relied upon for any other purpose without our express written consent, except that you may deliver copies of this opinion to (a) independent auditors, accountants, attorneys and other professionals acting on behalf of you, (b) governmental agencies having regulatory authority over you, and (c) designated persons pursuant to an order or legal process of any court or governmental agency.
The opinions set forth herein represent our reasoned judgment as to certain matters of law based upon facts presented or presumed and are not and should not be considered or construed as a guaranty. The liability of Dover Xxxxx Xxxxx PLLC is limited to the fullest extent possible under Ark. Code Xxx. § 00-000-000.
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We hereby consent to the filing of this opinion letter as Exhibit 8.2 to the Registration Statement and to the reference to this firm as having passed upon certain federal income tax matters for Summit. In giving such consent, we do not thereby admit that we are an “expert” within the meaning of the Securities Act of 1933.
Very truly yours,
/s/ Dover Xxxxx Xxxxx PLLC
DOVER XXXXX XXXXX PLLC
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