June 29, 2007
GS Agrifuels Corporation
0 Xxxx Xxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
GS Energy Corporation
0 Xxxx Xxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Re: Amended and Restated Agreement and Plan of Merger dated as of June 25,
2007 by and among GS Energy Corporation, GS Agrifuels Corporation and
GS Acquisition, Inc.
Ladies and Gentlemen:
You have requested our opinion regarding certain federal income tax consequences
resulting from the proposed merger (the "Merger") of GS Acquisition, Inc., a
Delaware corporation ("Merger Sub"), with and into GS Energy Corporation, a
Delaware corporation ("GS Energy"), pursuant to the terms and conditions of the
Amended and Restated Agreement and Plan of Merger dated as of June 25, 2007 by
and among GS Agrifuels Corporation, a Delaware corporation ("GS Agrifuels"),
Merger Sub, and GS Energy (the "Agreement"), as described in the Registration
Statement on Form S-4 to be filed by GS Agriculture with the Securities and
Exchange Commission on the date hereof (the "Registration Statement"). This
opinion is being rendered pursuant to your request and the Agreement. All
capitalized terms, unless otherwise specified, have the meaning assigned to them
in the Registration Statement.
In connection with this opinion, we have examined and are familiar with
originals or copies, certified or otherwise identified to our satisfaction, of
(i) the Agreement, (ii) the Registration Statement and (iii) such other
documents as we have deemed necessary or appropriate in order to enable us to
render the opinion below. In our examination, we have assumed the genuineness of
all signatures, the legal capacity of all natural persons, the authenticity of
all documents submitted to us as originals, the conformity to original documents
of all documents submitted to us as certified, conformed or photostatic copies
and the authenticity of the originals of such copies. In rendering the opinion
set forth below, we have relied upon certain written representations and
covenants of each of GS Agrifuels, Merger Sub, and GS Energy contained in an
officer's certificate dated as of the date hereof from each of GS Agrifuels,
Merger Sub and GS Energy (collectively, the "Officer Certificates"). The parties
to the Merger understand and acknowledge that any inaccuracy in the
representations and/or breach of any covenants set forth in the Officer
Certificates may cause some portion or all of the opinion set forth herein to be
undeliverable or inaccurate or inapplicable to the Merger in whole or in part.
Our opinion expressed herein is based solely upon the facts and representations
set forth in the Agreement, the Officer Certificates, and in the Registration
Statement and the prospectus contained therein, each as amended or supplemented
through the date hereof. As to any facts material to our opinion expressed
herein, we have relied on the foregoing documents and the facts, representations
and covenants of the parties to the Merger contained therein. To the extent any
of the facts or representations or covenants relied on by us are not truthful or
are inaccurate to any extent, the opinion contained herein would necessarily
have to be modified in whole or in part or may be rendered undeliverable. We
have assumed that the Merger will be consummated in accordance with the
Agreement reviewed by us. Any change in the terms or provisions of the Merger or
in any related fact, circumstance, representation or transaction may necessitate
the modification or withdrawal of our opinion. In the event any such change
occurs, we will have no obligation to modify our opinion as set forth herein
unless we are requested to do so in writing by you and are advised of any and
all such changes.
In rendering our opinion, we have considered the applicable provisions of the
Internal Revenue Code of 1986, as amended (the "Code"), Treasury Regulations,
pertinent judicial authorities, interpretive rulings of the Internal Revenue
Service (the "Service") and such other authorities as we have considered
relevant. Our opinion expressed herein is based on our analysis of the Code, the
applicable Treasury Regulations promulgated thereunder, current positions of the
Service contained in published revenue rulings and revenue procedures, current
administrative positions of the Service and existing judicial decisions, all of
which are subject to change or modification at any time. Any future amendment or
amendments to the Code, the Treasury Regulations or any new Federal judicial
decisions or administrative interpretations, any of which could be retroactive
in effect, could cause the opinion set forth herein to require modification or
could render such opinion undeliverable. The opinion expressed herein represents
our views as to the interpretation of existing federal income tax law and cannot
be taken as an assurance as to the manner in which the law will subsequently
develop. Accordingly, no assurance can by given that the Service will not alter
its present positions as they relate to our opinion either prospectively or
retrospectively, or will not adopt new positions with regard to any of the
matters upon which we are rendering an opinion, nor can any assurance be given
that the Service will not, upon any audit, question or challenge any portion or
aspect of the opinion expressed herein. The Service is not bound in any way by
the opinion expressed herein.
Based upon and subject to the foregoing, we are of the opinion that the Merger
will, under current law, constitute a tax-free reorganization under Section
368(a) of the Code, and GS Agrifuels, Merger Sub, and GS Energy will each be a
party to the reorganization within the meaning of Section 368(b) of the Code.
Except as set forth above, we express no opinion as to the tax consequences to
any party, whether Federal, state, local or foreign, of the Merger or of any
transactions related to the Merger or contemplated by the Agreement. In
particular, we express no opinion as to the tax consequences to any individual
holding restricted stock, or options to purchase stock, of GS Energy, which may
vest as a result of the Merger. This opinion is being furnished only to GS
Agrifuels and GS Energy in connection with the Merger and solely for the benefit
of GS Agrifuels and GS Energy in connection therewith and may not be used or
relied upon for any other purpose and may not be circulated, quoted or otherwise
referred to for any other purpose without our express written consent. Very
truly yours,
/s/ Neuenhaus Xxxxxxxxx, LLP
