1
Exhibit 8.1
September 25, 1997
Sanmina Corporation
000 Xxxx Xxxxxxx Xxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
This opinion is being delivered to you in accordance with Section
6.3(d) of the Agreement and Plan of Merger dated as of July 22, 1997 (the
"Reorganization Agreement") by and among Sanmina Corporation, a Delaware
corporation ("Sanmina"), SANM Acquisition Subsidiary, Inc., a Delaware
corporation and wholly-owned subsidiary of Sanmina ("Merger Sub") and Elexsys
International, Inc., a Delaware corporation ("Elexsys"). Pursuant to the terms
of the Reorganization Agreement, Merger Sub will merge with and into Elexsys
(the "Merger"), and Elexsys will become a wholly-owned subsidiary of Sanmina.
Except as otherwise provided, capitalized terms used but not defined
herein shall have the meanings set forth in the Reorganization Agreement. All
section references, unless otherwise indicated, are to the Internal Revenue Code
of 1986, as amended (the "Code").
We have acted as counsel to Sanmina in connection with the Merger. As
such, and for the purpose of rendering this opinion, we have examined, and are
relying upon (without any independent investigation or review thereof) the truth
and accuracy, at all relevant times, of the statements, covenants,
representations and warranties contained in, the following documents (including
all exhibits and schedules attached thereto):
1. the Reorganization Agreement;
2. those certain tax representation letters dated September 9
and September 27, 1997 delivered to us by Sanmina, Xxxxxx
Sub and Elexsys containing certain representations of
Sanmina, Merger Sub and Elexsys (the "Tax Representation
Letters");
3. Continuity of Interest Certificates dated September 9, 1997
by certain shareholders of Elexsys in favor of Sanmina, Merger
Sub and Elexsys (the "Continuity of Interest Certificates");
and
4. The proxy statement/prospectus of Elexsys and the consent
solicitation statement of the Sanmina (the "Registration
Statement"); and
2
Sanmina Corporation
September 25, 1997
Page 2
5. such other instruments and documents related to the formation,
organization and operation of Sanmina, Merger Sub and Elexsys
and related to the consummation of the Merger and the other
transactions contemplated by the Reorganization Agreement as
we have deemed necessary or appropriate.
In connection with rendering this opinion, we have assumed (without any
independent investigation or review thereof) that:
a. Original documents submitted to us (including signatures
thereto) are authentic, documents submitted to us as copies
conform to the original documents, and that all such documents
have been (or will be by the Effective Date) duly and validly
executed and delivered where due execution and delivery are a
prerequisite to the effectiveness thereof;
b. All representations, warranties and statements made or agreed
to by Sanmina, Merger Sub and Elexsys, their managements,
employees, officers, directors and shareholders in connection
with the Merger, including, but not limited to, those set
forth in the Reorganization Agreement (including the exhibits
thereto), the Tax Representation Letters and the Continuity of
Interest Certificates are true and accurate at all relevant
times;
c. All covenants contained in the Reorganization Agreement
(including exhibits thereto), the Tax Representation Letters
and the Continuity of Interest Certificates are performed
without waiver or breach of any material provision thereof;
d. There is no plan or intention on the part of the shareholders
of Elexsys to engage in a sale, exchange, transfer,
distribution, pledge, or other disposition or any transaction
which results in a reduction of risk of ownership, or a direct
or indirect disposition of shares of Sanmina Common Stock to
be received in the Merger that would reduce Elexsys's
shareholders' ownership of Sanmina Common Stock to a number of
shares having an aggregate fair market value, as of the
Effective Time, of less than fifty percent (50%) of the
aggregate fair market value of all of Elexsys Common Stock and
Preferred Stock ("Elexsys Capital Stock") outstanding
immediately prior to the Effective Time. (For purposes of the
preceding sentence, shares of Elexsys Capital Stock pursuant
to which shareholders of Elexsys exercise dissenters' rights
in the Merger, which are exchanged for consideration in the
Merger other than shares of Sanmina Common Stock, including
being exchanged for cash in lieu of fractional shares of
Sanmina Common Stock or are sold, redeemed or disposed of in a
transaction that is in contemplation of or related to the
Merger, shall be considered shares of Elexsys Capital Stock
held by
3
Sanmina Corporation
September 25, 1997
Page 3
shareholders of Elexsys immediately prior to the Merger which
are exchanged for shares of Sanmina Common Stock in the Merger
and then disposed of pursuant to a plan);
e. Any representation or statement made "to the best of
knowledge" or similarly qualified is correct without such
qualification; and
f. The opinion, dated September 25, 1997, from Xxxxxx Godward LLP
to Elexsys in satisfaction of Section 6.3(c) of the
Reorganization Agreement has been delivered and has not been
withdrawn.
Based on our examination of the foregoing items and subject to the
limitations, qualifications, assumptions and caveats set forth herein, we are of
the opinion that, for federal income tax purposes, the Merger will be a
reorganization within the meaning of Sections 368(a)(1) of the Code.
In addition to your request for our opinion on this specific matter of
federal income tax law, you have asked us to review the discussion of federal
income tax issues contained in the Registration Statement. We have reviewed the
discussion entitled "Certain Federal Income Tax Considerations" contained in the
Registration Statement and believe that such information fairly presents the
current federal income tax law applicable to the Merger and the material federal
tax consequences to Sanmina, Merger Sub and Elexsys, and Elexsys's shareholders
as a result of the Merger.
We consent to the reference to our firm under the caption "Certain
Federal Income Tax Considerations" in the Proxy Statement included in the
Registration Statement and to the filing of this opinion as an exhibit to the
Proxy Statement and to the Registration Statement.
This opinion does not address the various state, local or foreign tax
consequences that may result from the Merger or the other transactions
contemplated by the Reorganization Agreement. In addition, no opinion is
expressed as to any federal income tax consequence of the Merger or the other
transactions contemplated by the Reorganization Agreement except as specifically
set forth herein, and this opinion may not be relied upon except with respect to
the consequences specifically discussed herein.
No opinion is expressed as to any transaction other than the Merger as
described in the Reorganization Agreement, or as to any other transaction
whatsoever, including the Merger, if all of the transactions described in the
Reorganization Agreement are not consummated in accordance with the terms of the
Reorganization Agreement and without waiver of any material provision thereof.
To the extent that any of the representations, warrants, statements and
assumptions material to our opinion and upon which we have relied are not
accurate and complete in all material respects at all relevant times, our
opinion would be adversely affected and should not be relied upon.
This opinion only represents our best judgment as to the federal income
tax consequences of the Merger and is not binding on the Internal Revenue
Service or any court of law, tribunal, administrative agency or other
Governmental Body. The conclusions are based on the Code, existing judicial
decisions, administration regulations and published rulings. No assurance can be
given that future legislative, judicial or administrative changes or
interpretations would not adversely affect the accuracy of the conclusions
stated herein. Nevertheless, by rendering this opinion, we undertake no
responsibility to advise you of any new developments in the application or
interpretation of the federal income tax laws.
4
Sanmina Corporation
September 25, 1997
Page 4
This opinion has been delivered to you for the purpose of being included
as an exhibit to the Registration Statement and satisfying the conditions set
forth in Section 6.3(d) of the Reorganization Agreement. This opinion has been
delivered by us in our capacity as counsel to Sanmina. We hereby consent to the
filing of this opinion as an exhibit to the Registration Statement and to the
use of our name in the Registration Statement under "The Merger -- Certain
Federal Income Tax Consequences" and "Legal Matters."
Very truly yours,
XXXXXX XXXXXXX XXXXXXXX & XXXXXX
Professional Corporation
/s/ XXXXXX XXXXXXX XXXXXXXX & XXXXXX
