[XXXXX XXXXX XXXX & MAW LETTERHEAD]
February 26, 2002 0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-
To the Persons Listed on 5820
Schedule I Attached hereto
Main Tel (000) 000-0000
Main Fax (000) 000-0000
xxx.xxxxxxxxxxxxxx.xxx
Re: Agreement and Plan of Reorganization for the Exchange of
Stock of Xxxxxx Xxxxxxx S&P 500 Index Fund for Substantially
All of the Assets Xxxxxx Xxxxxxx S&P 500 Select Fund,
dated as of January 24, 2002 (the "Reorganization Agreement").
Ladies and Gentlemen:
We have acted as counsel Xxxxxx Xxxxxxx S&P 500 Select Fund ("S&P Select"),
and Xxxxxx Xxxxxxx S&P 500 Index Fund ("S&P Index") in connection with the
proposed transfer of substantially all of the assets of S&P Select to S&P Index
and certain other transactions related thereto pursuant to and in accordance
with the terms of the Reorganization Agreement (the "Reorganization"). You have
requested that we provide an opinion regarding the treatment of the
Reorganization under the Internal Revenue Code of 1986, as amended (the "Code"),
and the accuracy of the tax disclosures in the proxy statement and prospectus
(the "Proxy Statement/Prospectus") on Exhibit 12 to the Form N-14 Registration
Statement.
In connection with rendering these opinions, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of (i) the
Reorganization Agreement, (ii) the Registration Statement on Form N-14 for the
Reorganization, and the Proxy Statement/Prospectus and other documents,
exhibits, attachments and schedules contained therein, (iii) written
representations of Xxxxxx Xxxxxxx Investment Advisors Inc ("the "Advisor")
concerning certain facts underlying and relating to the Reorganization set forth
in a letter dated February 26, 2002, and (iv) such other documents and materials
as we have deemed necessary or appropriate for purposes of the opinions set
forth 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 or photostatic copies, and the
authenticity of the originals of such copies. We have not made an independent
investigation of the facts set forth either in the Registration Statement, the
Reorganization Agreement or such other documents that we have examined. We have
consequently assumed in rendering these opinions that the information presented
in such documents or otherwise furnished to us accurately and completely
describes in all material respects all facts relevant to the Reorganization.
We have also assumed for purposes of rendering our opinions (i) the
accuracy of, and material compliance with, the representations of the Advisor
set forth in the letter referred to above, (ii) the accuracy of, and material
compliance with, the representations, warranties, covenants and agreements of
S&P Select and S&P Index made in the Reorganization Agreement, and (iii) that
there are no agreements or understandings other than those of which we have been
informed that would affect our conclusions set forth below.
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The opinions set forth below are based on the Code, the legislative
history with respect thereto, rules and regulations promulgated thereunder, and
published rulings, court decisions and administrative authorities issued with
respect to all of the foregoing, all as in effect and existing on the date
hereof, and all of which are subject to change at any time, possibly on a
retroactive basis. In addition, there can be no assurance that positions
contrary to those stated in our opinions may not be asserted by the Internal
Revenue Service.
Any change occurring after the date hereof in, or a variation from, any of
the foregoing factual or legal bases for our opinions could affect the
conclusions set forth below.
In addition, the opinions expressed herein are given as of the date hereof
and we express no obligation to advise you of any changes in the law or events
that may hereafter come to our attention that could affect our opinions set
forth below.
Based on the foregoing, we are of the opinions that, for federal income
tax purposes:
1. The summaries of United States federal income tax consequences set
forth in the Proxy Statement/Prospectus under the headings "Synopsis -- Tax
Consequences of the Reorganization", "The Reorganization -- The Board's
Consideration" and "The Reorganization -- Tax Aspects of the Reorganization"
are accurate in all material respects as to matters of law and legal
conclusions.
2. The transfer of S&P Select's assets in exchange for S&P Index Shares(1)
and the assumption by S&P Index of certain stated liabilities of S&P Select
followed by the distribution by S&P Select of S&P Index Shares to the S&P
Select Shareholders in exchange for their S&P Select shares pursuant to and in
accordance with the terms of the Reorganization Agreement will constitute a
"reorganization" within the meaning of section 368(a)(1)(C) of the Code, and
S&P Select and S&P Index will each be a "party to a reorganization" within the
meaning of section 368(b) of the Code.
3. No gain or loss will be recognized by S&P Index upon receipt of the
assets of S&P Select solely in exchange for S&P Index Shares and the assumption
by S&P Index of the stated liabilities of S&P Select.
4. No gain or loss will be recognized by S&P Select upon the transfer of
the assets of S&P Select to S&P Index in exchange for S&P Index Shares and the
assumption by S&P Index of the stated liabilities or upon the distribution of
S&P Index Shares to the S&P Select Shareholders in exchange for their S&P
Select shares.
5. No gain or loss will be recognized by the S&P Select Shareholders upon
the exchange of the S&P Select shares for S&P Index Shares.
6. The aggregate tax basis for the S&P Index Shares received by each S&P
Select Shareholder pursuant to the Reorganization will be the same as the
aggregate tax basis of the S&P Select shares held by each such S&P Select
Shareholder immediately prior to the Reorganization.
7. The holding period of the S&P Index Shares to be received by each S&P
Select Shareholder will include the period during which the S&P Select shares
surrendered in exchange therefore were held (provided such S&P Select shares
are held as capital assets on the date of the Reorganization).
8. The tax basis of the assets of S&P Select acquired by S&P Index will be
the same as the tax basis of such assets to S&P Select immediately prior to the
Reorganization.
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(1) Capitalized terms used herein without definition have the meanings ascribed
to them in the Reorganization Agreement.
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9. The holding period of the assets of S&P Select in the hands of S&P
Index will include the period during which those assets were held by S&P
Select.
These opinions are being provided to you solely in connection with the
filing of the Registration Statement for the Reorganization. This opinion may
not be relied upon by you for any other purpose or relied upon by or furnished
to any other person without our prior written consent.
We hereby consent to the filing of this opinion as an exhibit to the Proxy
Statement/Prospectus and to all references to this firm under the headings
"Synopsis -- Tax Consequences of the Reorganization" and "The Reorganization --
Tax Aspects of the Reorganization" in the Proxy Statement/Prospectus.
Sincerely,
/s/ Xxxxx, Xxxxx Xxxx & Maw
Xxxxx, Xxxxx, Xxxx & Maw
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SCHEDULE I
Xxxxxx Xxxxxxx S&P 500 Index Fund
Xxxxxx Xxxxxxx S&P 500 Select Fund
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