1
EXHIBIT 8.1
June _____, 1997
VIA FEDEX DELIVERY
C&S HYBRID, INC.
804 Buckeye Court
Milpitas, California 95035
Attention: Board of Directors
Re: Closing Tax Opinion for Merger Transaction Involving C&S
Hybrid, Inc. and REMEC, Inc.
Ladies and Gentlemen:
We have been requested to render this opinion concerning
certain matters of U.S. federal income tax law in connection with the proposed
merger (the "MERGER") involving C&S Hybrid, Inc., a corporation organized and
existing under the laws of the State of California ("C&S HYBRID"), REMEC, Inc.,
a corporation organized and existing under the laws of the State of California
("REMEC") and C&S Acquisition Corporation, a corporation organized and existing
under the laws of the State of California and a wholly-owned subsidiary of REMEC
("REMEC SUB").
The Merger is structured as a statutory merger of REMEC Sub
with and into C&S Hybrid, with C&S Hybrid surviving the merger and becoming a
wholly-owned subsidiary of REMEC pursuant to the applicable corporate laws of
the State of California and in accordance with the Agreement and Plan of
Reorganization and Merger by and among C&S Hybrid, REMEC and REMEC Sub, dated as
of April 10, 1997, and exhibits thereto (collectively, the "AGREEMENT") and the
related Agreement of Merger (collectively, the "MERGER AGREEMENTS"). Except as
otherwise indicated, capitalized terms used herein have the meanings set forth
in the Merger Agreements. All section references, unless otherwise indicated,
are to the Internal Revenue Code of 1986, as amended (the "CODE").
We have acted as legal counsel to C&S Hybrid 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 schedules and exhibits thereto), among others:
2
1. The Merger Agreements;
2. An Officers' Tax Certificate of REMEC and REMEC Sub dated
June _______, 1997, signed by an authorized officer of each of REMEC and REMEC
Sub and delivered to us from REMEC and REMEC Sub and incorporated herein by
reference; and
3. An Officer's Tax Certificate of C&S Hybrid dated June
________, 1997, signed by an authorized officer of C&S Hybrid and delivered to
us from C&S Hybrid and incorporated herein by reference.
In addition, we have reviewed such other instruments and
documents related to the formation, organization and operation of C&S Hybrid,
REMEC and REMEC Sub or the consummation of the Merger and the transactions
contemplated thereby as we have deemed necessary or appropriate.
In connection with rendering this opinion, we have assumed or
obtained representations and are relying thereon (without any independent
investigation or review thereof) that:
(1) Original documents (including signature) are authentic,
documents submitted to us as copies conform to the original documents, and there
has been (or will be by the Effective Time) due execution and delivery of all
documents where due execution and delivery are prerequisites to the
effectiveness thereof;
(2) Any representation or statement referred to above made "to
the best of knowledge" or otherwise similarly qualified is correct without such
qualification;
(3) The Merger will be consummated pursuant to the Merger
Agreements and will be effective under applicable state law;
(4) There is no plan or intention on the part of the C&S
Hybrid shareholders to engage in a sale, exchange, transfer, distribution,
pledge, disposition or any other transaction which would result in a direct or
indirect disposition of (a) shares of REMEC Common Stock to be issued to C&S
Hybrid shareholders in the Merger, which shares would have an aggregate fair
market value, as of the Effective Time, in excess of 50% of the aggregate fair
market value, immediately prior to the Merger, of all outstanding shares of C&S
Hybrid stock, or (b) more than 50% of the shares of REMEC Common Stock to be
received in exchange for C&S Hybrid Common Stock in the Merger.
(5) Following the Merger, C&S Hybrid will continue its
historic business or use a significant portion of its historic business assets
in a business;
(6) To the extent any expenses relating to the Merger (or the
"plan of reorganization" within the meaning of Treas. Reg. Section 1.368-1(c)
with respect to the Merger) are funded directly or indirectly by a party other
than the incurring party, such expenses will be within the guidelines
established in Revenue Ruling 73-54, 1973-1 C.B. 187;
2
3
(7) No outstanding indebtedness of C&S Hybrid, REMEC or REMEC
Sub has or will represent equity for tax purposes; no outstanding equity of C&S
Hybrid, REMEC or REMEC Sub has represented or will represent indebtedness for
tax purposes; no outstanding security, instrument, agreement or arrangement that
provides for, contains, or represents either a right to acquire REMEC capital
stock (or to share in the appreciation thereof) constitutes or will constitute
"stock" for purposes of Section 368(c) of the Code; and
(8) Neither REMEC nor REMEC Sub is, or will be at the time of
the Merger, an investment company as defined in Section 368(a)(2)(F) of the
Code.
Based on the foregoing documents, materials, assumptions and
information, and subject to the qualifications and assumptions set forth herein,
we are of the opinion that, if the Merger is consummated in accordance with the
Agreement (and without any waiver, breach or amendment of any of the provisions
thereof) and the statements set forth in the Officers' Tax Certificates
described in the third paragraph hereof are true and correct as of the Effective
Time, then for federal income tax purposes, the Merger will qualify as a
reorganization within the meaning of Section 368(a) of the Code.
Our opinion set forth above is based on the existing
provisions of the Code, Treasury Regulations (including Temporary Treasury
Regulations) promulgated under the Code, published Revenue Rulings, Revenue
Procedures and other announcements of the Internal Revenue Service (the
"Service") and existing court decisions, any of which could be changed at any
time. Any such changes might be retroactive with respect to transactions entered
into prior to the date of such changes and could significantly modify the
opinion set forth above. Nevertheless, we undertake no responsibility to advise
you of any subsequent developments in the application, operation or
interpretation of the U.S. federal income tax laws.
Our opinion concerning certain of the U.S. federal tax
consequences of the Merger is limited to the specific U.S. federal tax
consequence presented above. No opinion is expressed as to any transaction other
than the Merger, including any transaction undertaken in connection with the
Merger. In addition, this opinion does not address any estate, gift, state,
local or foreign tax consequences that may result from the Merger. In
particular, we express no opinion regarding: (i) the amount, existence, or
availability after the Merger, of any of the U.S. federal income tax attributes
of C&S Hybrid or REMEC; (ii) any transaction in which C&S Hybrid Common Stock is
acquired or REMEC Common Stock is disposed other than pursuant to the Merger;
(iii) the potential application of the "disqualifying disposition" rules of
Section 421 of the Code to dispositions of C&S Hybrid Common Stock; (iv) the
effects of the Merger and REMEC's assumption of outstanding options to acquire
C&S Hybrid stock on the holders of such options under any C&S Hybrid employee
stock option or stock purchase plan or REMEC employee stock option or stock
purchase plan, respectively; (v) the effects of the Merger on any C&S Hybrid
stock acquired by the holder subject to the provision of Section 83(a) of the
Code; (vi) the effects of the Merger on any payment which is or may be subject
to the provisions of Section 280G of the Code; and (vii) the application of the
collapsible corporation provisions of Section 341 of the Code to C&S Hybrid,
REMEC or REMEC Sub as a result of the Merger.
3
4
No ruling has been or will be requested from the Service
concerning the U.S. federal income tax consequences of the Merger. In reviewing
this opinion, you should be aware that the opinion set forth above represents
our conclusions regarding the application of existing U.S. federal income tax
law to the instant transaction. If the facts vary from those relied upon
(including if any representations, covenant, warranty or assumption upon which
we have relied is inaccurate, incomplete, breached or ineffective), our opinion
contained herein could be inapplicable. You should be aware that an opinion of
counsel represents only counsel's best legal judgment, and has no binding effect
or official status of any kind, and that no assurance can be given that contrary
positions may not be taken by the Service or that a court considering the issues
would not hold otherwise.
This opinion is being delivered solely for the purpose of
satisfying the condition set forth in Section 8.10 of the Agreement. We hereby
consent to the filing of this opinion as an exhibit to the Registration
Statement filed on Form S-4 with the Securities and Exchange Commission and we
further consent to all references to us in the Registration Statement. This
opinion may not otherwise be relied upon or utilized for any other purpose or by
any other person or entity, and may not be made available to any other person or
entity, without our prior written consent.
Very truly yours,
FENWICK & WEST LLP
A LAW PARTNERSHIP INCLUDING
PROFESSIONAL CORPORATIONS
4