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EXHIBIT 8.1
[XXXXX, XXXXXXXX & XXXXXXX, LLP LETTERHEAD]
June 5, 1998
First National Bank of Tampa Florida Banks, Inc.
000 Xxxx Xxxxxxx Xxxxxxxxx Xxxxx 000, Xxxxxxxxxx Xxxxxx XX
Xxxxx, Xxxxxxx 00000 Xxxxxxxxxxxx, Xxxxxxx 00000-0925
Attention: Chairman Attention: President
Re: Agreement and Plan of Merger under which First National Bank
of Tampa will become a wholly-owned subsidiary of Florida
Banks, Inc.
Dear Sirs:
As counsel to Florida Banks, Inc. (the "Company"), a Florida
corporation, we have been requested to render our opinion expressed below in
connection with the proposed merger (the "Merger") of First National Bank of
Tampa, (the "Bank") into Florida Interim Bank No. 1, N.A. (the "New Bank"), a
yet to be formed wholly-owned subsidiary of the Company, pursuant to the terms
and conditions of that certain Agreement and Plan of Merger (the "Merger
Agreement") by and among the Bank, the Company and the New Bank described in
that certain Form S-4 Registration Statement, Registration Number 333-51095
filed with the Securities and Exchange Commission on April 27, 1998 (the
"Registration Statement").
In rendering our opinion, we have examined the Internal Revenue Code of
1986, as amended (the "Code"), and applicable regulations, rulings, and
decisions, thereunder. With respect to matters of fact on which our opinions
herein are based, we have relied, without independent verification of the
accuracy or completeness thereof, upon the representations in the Merger
Agreement and upon the following representations that have heretofore been made
to us by the Executive Vice President and Chief Operating Officer of the Bank
and/or by the President and Chief Executive Officer of the Company and the New
Bank:
A. The fair market value of the Company stock and other consideration
to be received by each Bank shareholder will be approximately equal to the fair
market value of the Bank stock surrendered in the exchange.
B. The New Bank will acquire at least 90% of the fair market value of
the net assets (giving effect to liabilities) and at least 70% of the fair
market value of the gross assets (ignoring liabilities) held by the Bank
immediately prior to the Merger. For purposes of this representation,
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First National Bank of Tampa
Florida Banks, Inc.
June 5, 1998
Page 2
amounts paid by the Bank to dissenters, amounts paid by the Bank to shareholders
who receive cash or other property, Bank assets used to pay its reorganization
expenses, and all redemptions and distributions (except for regular, normal
dividends) made by the Bank immediately preceding the transfer, will be included
as assets of the Bank held immediately prior to the Merger.
C. Prior to the Merger, the Company will be in control of the New Bank.
For purposes of this representation and the representation set forth in
paragraph D below, the term "control" means the ownership of stock of the New
Bank possessing at least 80 percent of the total combined voting power of all
classes of stock of the New Bank entitled to vote and at least 80 percent of the
total number of shares of all other classes of stock of the New Bank.
D. Following the Merger, the New Bank will not issue additional shares
of its stock that would result in the Company's losing control of the New Bank.
E. The Company has no plan or intention to reacquire any of its stock
issued in the Merger.
F. The Company has no plan or intention to liquidate the New Bank; to
merge the New Bank with and into another corporation; to sell or otherwise
dispose of the stock of the New Bank; or to cause the New Bank to sell or
otherwise dispose of any of the assets of the Bank acquired in the Merger,
except for dispositions made in the ordinary course of business or transfers to
a subsidiary controlled by the New Bank.
G. The liabilities of the Bank assumed by the New Bank and the
liabilities to which the transferred assets of the Bank are subject were
incurred by the Bank in the ordinary course of its business.
H. Following the Merger, the New Bank will continue the historic
business of the Bank or use a significant portion of the Bank's business assets
in a business.
I. The Company, the Bank, the New Bank, and the shareholders of the
Bank will pay their respective expenses, if any, incurred in connection with the
Merger.
J. There is no intercorporate indebtedness existing between the Company
and the Bank or between the New Bank and the Bank that was issued, acquired, or
will be settled at a discount.
K. No party to the reorganization to be effected by the Merger is under
the jurisdiction of a court in a Title 11 or similar case. For purposes of this
representation, "Title 11 or similar case" means (i) a case under Title 11 of
the United States Code, or (ii) a receivership, foreclosure or similar
proceeding in a federal or state court.
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First National Bank of Tampa
Florida Banks, Inc.
June 5, 1998
Page 3
L. The fair market value of the assets of the Bank transferred to the
New Bank will equal or exceed the sum of the liabilities assumed by the New
Bank, plus the amount of liabilities, if any, to which the transferred assets
are subject.
M. No stock of the New Bank will be issued in the Merger.
N. None of the compensation received by any shareholder-employees of
the Bank will be separate consideration for, or allocable to, any of their
shares of Bank stock; none of the shares of Company stock received by any
shareholder-employees will be separate consideration for, or allocable to, any
employment agreement; and the compensation paid to any shareholder-employees
will be for services actually rendered and will be commensurate with amounts
paid to third parties bargaining at arm's length for similar services.
Based on and in reliance upon the foregoing, it is our opinion that,
provided the Merger is consummated in accordance with the Merger Agreement:
(1) the merger of the Bank into the New Bank, and the issuance of
shares of common stock of the Company pursuant to the Merger Agreement will
constitute a tax-free "reorganization" under Sections 368(a)(1)(A) and (a)(2)(D)
of the Code;
(2) no gain or loss will be recognized by shareholders of the Bank upon
the exchange of common stock of the Bank for common stock of the Company
pursuant to the Merger Agreement;
(3) the tax basis of the common stock of the Company received by
shareholders of the Bank pursuant to the Merger Agreement will be the same as
the tax basis of the shares of common stock of the Bank surrendered in exchange
therefor;
(4) the holding period of the shares of common stock of the Company
received by the shareholders of the Bank will include the holding period of the
shares of common stock of the Bank surrendered in exchange therefor, provided
that such stock of the Bank is held as a capital asset on the date of
consummation of the Merger;
(5) no gain or loss will be recognized by the Bank upon the transfer by
the Bank of substantially all its assets to the New Bank solely in exchange for
common stock of the Company and the assumption by the New Bank of the
liabilities of the Bank pursuant to the Merger Agreement;
(6) no gain or loss will be recognized by the Company or the New Bank
upon the receipt by the New Bank of substantially all the assets of the Bank in
exchange for common stock of the Company and the assumption by the New Bank of
the liabilities of the Bank;
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First National Bank of Tampa
Florida Banks, Inc.
June 5, 1998
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(7) the tax basis of the common stock of the New Bank in the hands of
the Company will be increased by the tax basis of the assets of the Bank
transferred to the New Bank and decreased by the sum of the liabilities of the
Bank assumed by the New Bank and the liabilities, if any, to which the
transferred assets of the Bank are subject;
(8) the tax basis of the assets of the Bank transferred to the New Bank
pursuant to the Merger Agreement will be the same as the tax basis of those
assets in the hands of the Bank immediately before the transfer;
(9) pursuant to Section 381(a) of the Code, the New Bank will succeed
to and take into account the tax attributes of the Bank described particularly
in Section 381(c) of the Code as of the date of the transfer of assets from the
Bank to the New Bank, subject to the limitations specified in Sections 381
through 384 of the Code;
(10) pursuant to Section 381(c)(2) of the Code, the New Bank will
succeed to and take into account the earnings and profits or deficit in earnings
and profits of the Bank as of the date of the transfer of assets from the Bank
to the New Bank. Any deficit in such earnings and profits may be used only to
offset earnings and profits accumulated after the date of such transfer;
(11) a holder of common stock of the Bank who exercises statutory
dissenter's rights in connection with the Merger generally will recognize
capital gain or loss (assuming the common stock is held as a capital asset)
equal to the difference, if any, between such holder's tax basis in the common
stock of the Bank exchanged and the amount of cash received in exchange
therefor; and
(12) a holder of common stock of the Bank who receives cash in lieu of
a fractional share of Company common stock pursuant to the terms of the Merger
Agreement will recognize capital gain or loss (assuming the fractional share is
held as a capital asset) equal to the difference, if any, between the amount of
cash so received and the holder's tax basis allocable to such fractional share.
Our opinions herein are limited to the federal income tax laws of the
United States, and we do not purport to address herein any other federal laws,
or any laws of any state or any other jurisdiction. In addition, no opinion is
expressed with respect to the federal income tax consequences of any aspect of
the merger to certain holders of the common stock of the Bank who are subject to
special tax treatment for federal income tax purposes, including, among others,
life insurance companies, tax exempt entities and foreign taxpayers.
This letter is solely for your information and use and, except to the
extent related to the filing of the Registration Statement with the Securities
and Exchange Commission and except to the extent that such may be referred to in
the Registration Statement, is not to be used, circulated, quoted or
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First National Bank of Tampa
Florida Banks, Inc.
June 5, 1998
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otherwise referred to for any other purpose or relied upon by any other person
for whatever reason without our prior written consent.
XXXXX, XXXXXXXX & XXXXXXX, LLP
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Xxxxxx X. Xxxxx
RWW/ll
Tax/28274
