Registration of Securities Issued in a Business-Combination Transaction — Form S-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-4 Registration of Securities Issued in a 67 303K
Business-Combination Transaction
2: EX-5 Opinion re: Legality 1 9K
3: EX-8 Opinion re: Tax Matters 6 24K
4: EX-23.1 Consent of Experts or Counsel 1 8K
5: EX-99.1 Miscellaneous Exhibit 1 8K
13: EX-99.10 Miscellaneous Exhibit 1 8K
14: EX-99.11 Miscellaneous Exhibit 1 8K
15: EX-99.12 Miscellaneous Exhibit 1 8K
16: EX-99.13 Miscellaneous Exhibit 1 8K
17: EX-99.14 Miscellaneous Exhibit 3 12K
6: EX-99.2 Miscellaneous Exhibit 1 8K
7: EX-99.3 Miscellaneous Exhibit 1 8K
8: EX-99.5 Miscellaneous Exhibit 1 8K
9: EX-99.6 Miscellaneous Exhibit 1 8K
10: EX-99.7 Miscellaneous Exhibit 1 8K
11: EX-99.8 Miscellaneous Exhibit 1 8K
12: EX-99.9 Miscellaneous Exhibit 1 8K
EX-8 — Opinion re: Tax Matters
| EX-8 | 1st Page of 6 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
|---|
Exhibit 8
August 31, 1999
Carolina Power & Light Company
411 Fayetteville Street Mall
Raleigh, NC 27601
CAROLINA POWER & LIGHT COMPANY
FORMATION OF HOLDING COMPANY
CERTAIN FEDERAL INCOME TAX MATTERS
--------------------------------------
Ladies and Gentlemen:
We have acted as counsel to Carolina Power & Light Company ("CP&L"), a
North Carolina corporation, in connection with the proposed exchange (the
"Exchange") of all the outstanding shares of CP&L common stock for shares of
common stock of CP&L Holdings, Inc. ("Holdings"), a newly-formed, wholly-owned
subsidiary of CP&L, pursuant to the Agreement and Plan of Share Exchange, dated
as of August 22, 1999, between CP&L and Holdings (the "Agreement"). This opinion
letter is delivered to you in connection with a Registration Statement relating
to the Exchange to be filed under the Securities Act of 1933 (the "Registration
Statement").
CP&L has several outstanding classes of voting stock: common stock, $5
preferred stock, and serial preferred stock (the two classes of preferred stock
are collectively referred to herein as the "Preferred Stock"). In the Exchange,
each outstanding share of CP&L common stock will be exchanged for a share of
Holdings voting common stock. None of the CP&L Preferred Stock will be exchanged
in the Exchange. Each outstanding share of Holdings common stock held by CP&L
immediately before the Exchange will be canceled. As a result of the Exchange,
the common shareholders of CP&L will own all of the issued and outstanding stock
of Holdings, and Holdings will own all the issued and outstanding common stock
of CP&L. CP&L common shareholders will not be entitled to exercise dissenter's
rights with respect to the Exchange, but preferred shareholders will be entitled
to exercise such rights.
You have requested our opinion concerning certain federal income tax
consequences of the Exchange. In giving this opinion, we have reviewed the
Agreement, the Registration
Carolina Power & Light Company
August 31, 1999
Page 2
Statement, and such other documents as we have considered necessary. In
addition, we have been advised by appropriate officers of CP&L as follows:
1. The fair market value of the Holdings common stock received by a
CP&L shareholder in the Exchange will be approximately equal to the fair market
value of the CP&L common stock surrendered in the Exchange.
2. No share of Holdings common stock will be issued for services
rendered to or for the benefit of Holdings in connection with the Exchange; none
of the compensation received by any shareholder-employee of CP&L will be
separate consideration for, or allocable to, any shares of CP&L common stock;
none of the shares of Holdings common stock received by any shareholder-employee
in the Exchange will be separate consideration for, or allocable to, any
employment agreement; and the compensation paid to any shareholder-employee will
be for services actually rendered and will be commensurate with amounts paid to
third parties bargaining at arm's length for similar services.
3. No share of CP&L common stock has been or will be redeemed directly
or indirectly (including, without limitation, through a partnership) by CP&L or
acquired directly or indirectly (including, without limitation, through a
partnership) by any subsidiary of CP&L in anticipation of the Exchange, except
that CP&L might purchase some shares of its common stock in open market
transactions prior to the Exchange, but CP&L will not solicit the purchase of
(and will not knowingly purchase) any shares of CP&L common stock from any
former shareholder of North Carolina Natural Gas Corporation. CP&L has not made
and will not make any extraordinary distribution with respect to its stock in
anticipation of the Exchange.
4. There is no plan or intention for Holdings or any subsidiary of
Holdings to acquire directly or indirectly (including, without limitation,
through a partnership) or to make any extraordinary distribution with respect to
any of the Holdings common stock issued in the Exchange, except that Holdings
might purchase some shares of its common stock in open market transactions after
the Exchange. Holdings will not solicit the purchase of (and will not knowingly
purchase) any shares of Holdings common stock from any former shareholder of
North Carolina Natural Gas Corporation.
5. No liability of any CP&L shareholder will be assumed by Holdings or
any other person in the Exchange, nor will any of the CP&L common stock be
acquired subject to any liability.
6. In the Exchange, Holdings will acquire at least 80 percent of (a)
the total combined voting power of all classes of CP&L voting stock, (b) each
class of CP&L nonvoting stock, and
Carolina Power & Light Company
August 31, 1999
Page 3
(c) the total fair market value of all the outstanding stock of CP&L.
7. After the Exchange, CP&L will not issue additional shares of its
stock that would result in Holdings owning less than 80 percent of (a) the total
combined voting power of all classes of CP&L voting stock, (b) each class of
CP&L nonvoting stock, or (c) the total fair market value of all the outstanding
stock of CP&L.
8. Immediately after the effective time of the Exchange, CP&L will not
have outstanding any warrants, options, convertible securities, or any other
type of right pursuant to which any person could acquire stock in CP&L that
would result in Holdings owning less than 80 percent of (a) the total combined
voting power of all classes of CP&L voting stock, (b) each class of CP&L
nonvoting stock, or (c) the total fair market value of all the outstanding stock
of CP&L.
9. Except for the potential issuance of shares of Holdings common
stock in connection with the possible acquisition of Florida Progress
Corporation, there is no plan or intention for Holdings to issue additional
shares of its stock after the Exchange that would result in the former CP&L
common shareholders owning less than 80 percent of (a) the total combined voting
power of all classes of Holdings voting stock, (b) each class of Holdings
nonvoting stock, and (c) the total fair market value of all the outstanding
stock of Holdings.
10. Except for the potential issuance of shares of Holdings common
stock in connection with the possible acquisition of Florida Progress
Corporation, at and immediately after the effective time of the Exchange, there
will not be outstanding any warrants, options, convertible securities, or any
other type of rights or agreements pursuant to which any person could acquire
stock in Holdings that would result in the former CP&L common shareholders
owning less than 80 percent of (a) the total combined voting power of all
classes of Holdings voting stock, (b) each class of Holdings nonvoting stock,
and (c) the total fair market value of all the outstanding stock of Holdings.
11. CP&L common shareholders will not retain any rights in the CP&L
common stock after the Exchange.
12. On the effective date of the Exchange, the fair market value of
CP&L's assets will exceed the sum of CP&L's liabilities plus the amount of
liabilities, if any, to which its assets are subject.
13. Following the Exchange, CP&L will continue its historic business
or use a significant portion of its historic business assets in a business.
Carolina Power & Light Company
August 31, 1999
Page 4
14. There is no indebtedness existing between (a) CP&L or any
subsidiary of CP&L and (b) Holdings.
15. There is no indebtedness existing between Holdings and any CP&L
common shareholder, and no indebtedness will be created in favor of any CP&L
common shareholder as a result of the Exchange.
16. CP&L shareholders will pay their expenses, if any, incurred in
connection with the Exchange.
17. Neither CP&L nor Holdings has any plan or intention (a) to
liquidate CP&L, (b) to merge CP&L into another entity, (c) to sell or otherwise
dispose of any stock of CP&L, or (d) to sell or otherwise dispose of any of
CP&L's assets except for (i) dispositions made in the ordinary course of
business and (ii) the possible distribution of all of the stock of one or more
subsidiaries of CP&L to Holdings.
18. There is no plan or intention to liquidate Holdings, to merge it
with any other entity, or to dispose of its assets other than in the ordinary
course of business.
19. After the Exchange, (a) less than 50 percent of the fair market
value of Holdings' assets (excluding cash, cash items and equivalents, accounts
receivable, and United States government securities) will consist of stocks and
securities and (b) less than 80 percent of the fair market value of Holdings'
assets will consist of: stocks, securities, other equity interests in
corporations, money, evidences of indebtedness, options, forward or futures
contracts, notional principal contracts and derivatives, foreign currency,
interests in common trust funds or publicly traded partnerships, precious
metals, interests in regulated investment companies or real estate investment
trusts, equity interests (other than in a corporation) that are readily
convertible into or exchangeable for any of the preceding assets, and interests
in an entity substantially all of the assets of which consist of any of the
preceding assets. For purposes of the preceding sentence, a corporation's assets
exclude stock and securities issued by any subsidiary at least 50 percent of the
voting power or 50 percent of the total fair market value of the stock of which
is owned by a corporation, but a corporation is treated as owning directly a
ratable share (based on the percentage of the fair market value of the
subsidiary's stock owned by the corporation) of the assets owned by any such
subsidiary.
20. At all times during the five-year period ending on the effective
date of the Exchange, no CP&L shareholder that is a nonresident alien or foreign
entity has owned directly or indirectly of record or, to the knowledge of CP&L,
beneficially more than five percent of the outstanding CP&L common stock.
Carolina Power & Light Company
August 31, 1999
Page 5
21. Any shares of Holdings common stock received in exchange for
shares of CP&L common stock that were acquired in connection with the
performance of services and are subject to a substantial risk of forfeiture
within the meaning of section 83(c) of the Internal Revenue Code (the "Code")
will be subject to substantially the same risk of forfeiture after the Exchange.
On the basis of the foregoing, and assuming that the Exchange will be
consummated in accordance with the Agreement, we are of the opinion that (under
existing law) for federal income tax purposes:
1. The Exchange will be a reorganization within the meaning of section
368(a)(1)(B) of the Code or an exchange to which section 351(a) of the Code
applies.
2. Holdings will not recognize any gain or loss on the issuance of
Holdings common stock or the acquisition of CP&L common stock in the Exchange.
3. CP&L will not recognize any gain or loss on Holdings' acquisition
of CP&L common stock solely in exchange for shares of Holdings common stock in
the Exchange.
4. A CP&L shareholder will not recognize gain or loss on the exchange
of shares of CP&L common stock solely for shares of Holdings common stock in the
Exchange.
5. The aggregate basis of the shares of Holdings common stock received
by a CP&L shareholder in the Exchange will be the same as the shareholder's
aggregate basis in the shares of CP&L common stock exchanged therefor.
6. The holding period for shares of Holdings common stock received by
a CP&L shareholder in the Exchange will include the holding period for the
shares of CP&L common stock exchanged therefor, if such shares of CP&L common
stock are held as a capital asset on the effective date of the Exchange.
We are also of the opinion that the material federal income tax
consequences of the Exchange to CP&L common shareholders are fairly summarized
in the Registration Statement under the headings "Summary--How will the holding
company transaction affect my income taxes?" and "The Holding Company
Proposal--Material Federal Income Tax Consequences."
Except as set forth above, we express no opinion regarding any tax
consequences of the Exchange. This opinion may not be distributed, quoted in
whole or in part or otherwise reproduced in any document, or filed with any
governmental agency without our prior written consent. We consent to the use of
this opinion as an exhibit to the Registration Statement and to the references
to this firm in the Registration Statement under the aforementioned headings.
Carolina Power & Light Company
August 31, 1999
Page 6
In giving this consent, we do not admit that we are within the category of
persons whose consent is required by section 7 of the Securities Act of 1933 or
the rules and regulations promulgated thereunder by the Securities and Exchange
Commission.
Very truly yours,
/s/ Hunton & Williams
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘S-4’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 8/31/99 | | 1 | | 6 | | | None on these Dates |
| | 8/22/99 | | 1 |
| List all Filings |
↑Top
Filing Submission 0001047469-99-034251 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)
Copyright © 2024 Fran Finnegan & Company LLC – All Rights Reserved.
About — Privacy — Redactions — Help —
Thu., May 9, 12:44:27.1pm ET 