EXHIBIT 8.1
BARACK FERRAZZANO KIRSCHBAUM PERLMAN & NAGELBERG LLC
333 WEST WACKER DRIVE, SUITE 2700
CHICAGO, ILLINOIS 60606
Telephone (312) 984-3100
Facsimile (312) 984-3193
March 15, 2004
Heartland Financial USA, Inc. Rocky Mountain Bancorporation, Inc.
1398 Central Avenue 2615 King Avenue West
P.O. Box 778 Billings, MT 59108
Dubuque, IA 52004
RE: OPINION REGARDING MATERIAL FEDERAL INCOME TAX CONSEQUENCES
Ladies and Gentlemen:
We have acted as counsel to Heartland Financial USA, Inc., a Delaware
corporation ("Acquiror"), in connection with the negotiation and execution of an
Agreement and Plan of Merger, dated as of February 6, 2004 (the "Agreement"),
among Acquiror, RMB Acquisition Corporation, a Montana corporation and
wholly-owned subsidiary of Acquiror ("Sub"), and Rocky Mountain Bancorporation,
Inc., a Montana corporation ("Company"), whereby Sub will merge with and into
Company with Company surviving (the "Initial Merger") and, immediately
thereafter, Company will merge with and into Acquiror with Acquiror surviving
(such merger, together with the Initial Merger, the "Mergers"), as more fully
described in the Registration Statement on Form S-4, filed by Acquiror with the
Securities and Exchange Commission (the "Commission") on March 17, 2004 (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Act"). This opinion is being delivered to you pursuant to Section 10.10 of the
Agreement.
In connection with this opinion, we have reviewed the Agreement, including
all exhibits thereto, and such other documents and records as we deemed
necessary or appropriate (collectively, the "Documents"). In our examination of
the Documents, we have assumed their completeness and authenticity, and we have
further assumed that each of the Documents has been or will be duly authorized
and executed in the form as examined by us and will be binding upon all parties
thereto. We are expressly relying for purposes of this opinion on the facts,
information, representations, warranties and covenants contained in the
Documents. In addition, we are expressly relying upon additional representations
of fact made by Company in a letter dated of even date hereof and by Acquiror
and Sub in a letter dated of even date hereof, delivered to us in connection
with this opinion, as well as facts learned in discussions with certain officers
of Acquiror and certain other assumptions stated herein. We are relying upon the
accuracy of any representations or statements made that are qualified by the
maker's knowledge or belief as if such representations or statements were made
without such qualification. We have also assumed that as to all matters for
which a person or entity has represented that such person or entity is not
BARACK FERRAZZANO KIRSCHBAUM PERLMAN & NAGELBERG LLC
Heartland Financial USA, Inc.
Rocky Mountain Bancorporation, Inc.
March 15, 2004
Page 2
a party to, does not have, or is not aware of, any plan, intention,
understanding, or agreement, there is no such plan, intention, understanding, or
agreement. We have not been asked to and have not attempted to verify any facts,
information, warranties or representations (collectively "statements") through
independent investigation and are assuming that each is true, correct and
complete as of the date hereof and that no actions inconsistent with such
statements have occurred or will occur.
In connection with this opinion, we have assumed that each of the Mergers
will qualify as a merger under all applicable state business corporation
statutes, and that the Mergers will be effected and consummated in accordance
with the terms and conditions of the Agreement, including satisfaction of all
material covenants and conditions to the obligations of the parties without
amendment or waiver thereof. We have also assumed that none of the parties will
take any action after the Mergers that would cause the Mergers, taken together,
not to qualify as a reorganization within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code").
Based on and subject to the foregoing, including, without limitation, the
qualifications, exceptions and assumptions set forth above and the exceptions,
qualifications and limitations set forth below, it is our opinion that (i) the
Mergers, taken together, will constitute a reorganization within the meaning of
Section 368(a) of the Code; (ii) each of Company and Acquiror will be a "party
to a reorganization" within the meaning of Section 368(b) of the Code; (iii) no
gain or loss will be recognized by Acquiror as a result of the Mergers pursuant
to Section 1032 of the Code; (iv) no gain or loss will be recognized by Company
as a result of the Mergers pursuant to Section 361(a) of the Code; and (v)
pursuant to Sections 354(a)(1) and 356(a)(1) of the Code, no gain or loss will
be recognized by holders of RMB common stock upon their exchange of such stock
for Heartland common stock pursuant to the Mergers, except that gain, if any,
will be recognized to the extent of any cash received.
We express no opinion as to the tax treatment of the Mergers under the
provisions of any other sections of the Code or under any state, local or
foreign tax laws which also may be applicable thereto or as to any other party
in the Mergers, nor do we express any opinion as to non-tax issues such as
corporate law or securities law matters. In addition, we express no opinion as
to the tax treatment of any conditions existing at the time of, or effects
resulting from, transactions which are not specifically addressed herein. We
express no opinion as to whether the above discussion addresses all of the
United States federal income tax consequences of the Mergers that may be
applicable to Acquiror, Sub, Company, or the holders of Company common stock.
The opinions stated herein represent our legal judgment as to the described
federal income tax consequences of the Mergers. Our opinion is based upon the
Code, the Income Tax
BARACK FERRAZZANO KIRSCHBAUM PERLMAN & NAGELBERG LLC
Heartland Financial USA, Inc.
Rocky Mountain Bancorporation, Inc.
March 15, 2004
Page 3
Regulations promulgated thereunder, and administrative and judicial
determinations, all of which are subject to change either prospectively or
retroactively, and our knowledge of the facts as of the date hereof. If either
(i) the relevant facts at the time of closing differ from those represented or
stated to us or reflected by the Documents, (ii) the Mergers are completed under
terms not contained in the Agreement, (iii) our assumptions prove to be untrue,
or (iv) the existing authorities are modified by legislative, administrative or
judicial action, our conclusions may differ and this opinion may not be relied
upon. In such event, we do not assume any responsibility to provide a revised
opinion or other advice, and we assume no duty to communicate with you with
respect to any matter that comes to our attention hereafter.
You should be aware that no ruling has been sought or obtained from the
Internal Revenue Service (the "Service") as to the federal income tax
consequences of any aspect of the Mergers and that our opinion is not binding on
the Service. You should also be aware that there can be no assurance, and none
is hereby given, that the Service will not take a position contrary to the
position reflected in the foregoing opinion, or that our opinion will be upheld
by the courts if challenged by the Service.
We hereby consent to the use of this opinion in connection with the
Registration Statement. In giving such consent, however, we do not hereby
concede that we are within the category of persons whose consent is required
under Section 7 of the Act or the rules and regulations of the Commission
promulgated thereunder.
We are furnishing this opinion to you solely for your benefit in connection
with the transactions contemplated by the Agreement. This opinion may not be
relied upon by any other party without our prior written consent, nor may it be
used, circulated, quoted or otherwise referred to for any other purpose without
our prior written consent.
Very truly yours,
/s/ Barack Ferrazzano Kirschbaum Perlman & Nagelberg LLC
BARACK FERRAZZANO KIRSCHBAUM
PERLMAN & NAGELBERG LLC