FORM OF SECURITIES OPINION
November 20, 1998
Board of Trustees
Xxxxx Xxxxxxx Investment Company
000 X Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Re: Agreement and Plan of Reorganization for the
Xxxxx Xxxxxxx Investment Company, a
Massachusetts business trust (the "Trust"),
on behalf of the Fixed Income II Fund (the
"Acquiring Portfolio") of the Trust, and on
behalf of the Volatility Constrained Bond
Fund (the "Acquired Portfolio") of the
Trust, dated as of November 20, 1998
Ladies and Gentlemen:
You have requested our opinion as to certain matters relating to the
reorganization of the Acquired Portfolio and the Acquiring Portfolio (the
"Reorganization"). The Reorganization will involve the transfer of all the
assets of the Acquired Portfolio to the Acquiring Portfolio, and the assumption
of the liabilities of the Acquired Portfolio by the Acquiring Portfolio. In
exchange for the foregoing, Class S shares of the Acquiring Portfolio will be
distributed to shareholders of the Acquired Portfolio, following which the
Acquired Portfolio will be dissolved.
In rendering our opinion, we have reviewed and relied upon:
A. The Agreement and Plan of Reorganization, made
as of November 19, 1998, by and between the Acquired
Portfolio and the Acquiring Portfolio (the "Agreement");
B. The registration statement and proxy materials filed by the Trust on
Form N-14 and as provided to shareholders of the Acquired Portfolio in
connection with the Special Meeting in Lieu of Annual Meeting of Shareholders of
the Acquired Portfolio held November 19, 1998;
X. Xxxxxxx representations concerning the Reorganization made to us by the
Acquired Portfolio and the Acquiring Portfolio in a letter dated November 19,
1998 (the "Representation Letter");
D. All other documents, financial and other reports and corporate minutes
which we deemed relevant or appropriate; and
E. Such statutes, regulations, and interpretations of the Securities and
Exchange Commission as we deemed material to the rendition of this opinion. All
terms used herein, unless otherwise defined, are used as defined in the
Agreement.
We have assumed and therefore have not verified independently the
authenticity of all documents submitted to us as originals and the conformity to
original documents of all documents submitted to us as certified or photostatic
copies. Other than our review of the documents set forth above, we have not
reviewed any other documents or made any independent investigation for the
purpose of rendering this opinion and we make no representations as to the scope
or sufficiency of our document review for your purpose.
Based on the foregoing and provided the Reorganization is carried out
in accordance with the applicable laws of the Commonwealth of Massachusetts, the
Agreement, and the Representation Letter, it is our opinion that as of the date
hereof:
(1) The Trust is a Massachusetts business trust duly organized and validly
existing under the laws of the Commonwealth of Massachusetts;
(2) The shares of the Acquired Portfolio outstanding at the Effective Time
of the Reorganization are duly authorized, validly issued, fully paid and
non-assessable by the Acquired Portfolio, and to our knowledge no shareholder of
the Acquired Portfolio has any option, warrant or preemptive right to
subscription or purchase with respect to the shares of the Acquired Portfolio;
(3) The Agreement and the Transfer Documents have been duly authorized,
executed and delivered by the Acquired Portfolio and represent its legal, valid
and binding contracts or instruments, enforceable against the Acquired Portfolio
in accordance with their terms, subject to the effect of bankruptcy, insolvency,
moratorium, fraudulent conveyance and similar laws relating to or affecting
creditors' rights generally and court decisions with respect thereto, and we
express no opinion with respect to the application of equitable principles in
any proceeding, whether at law or in equity, or with respect to the provisions
of the Agreement intended to limit liability for particular matters to the
Acquired Portfolio and its assets;
(4) The execution and delivery of the Agreement did not, and the
consummation of the transactions contemplated by the Agreement will not, violate
the Trust Agreement or By-Laws of the Trust or any material agreement known to
us to which the Trust is a party or by which the Trust is bound;
(5) To our knowledge, no consent, approval, authorization or order of any
court or governmental authority is required for the consummation by the Acquired
Portfolio of the transactions contemplated by the Agreement, except such as have
been obtained under the 1933 Act, the 1934 Act, the 1940 Act, the rules and
regulations under those Acts, and such as may be required under state securities
laws;
(6)The Class S Shares of the Acquiring Portfolio to be delivered at such
time to the Acquired Portfolio as provided in the Agreement are duly authorized
and upon delivery will be validly issued, fully paid and non-assessable by the
Acquiring Portfolio, and to our knowledge no shareholder of the Acquiring
Portfolio has any option, warrant or preemptive right to subscription or
purchase with respect to the shares of the Acquiring Portfolio;
(7) The Agreement has been duly authorized, executed and delivered by the
Acquiring Portfolio and represents its legal, valid and binding contract,
enforceable against the Acquiring Portfolio in accordance with its terms,
subject to the effect of bankruptcy, insolvency, moratorium, fraudulent
conveyance and similar laws relating to or affecting creditors' rights generally
and court decisions with respect thereto, and we express no opinion with respect
to the application of equitable principles in any proceeding, whether at law or
in equity, or with respect to the provisions of the Agreement intended to limit
liability for particular matters to the Acquiring Portfolio and its assets; and
(8) To our knowledge, no consent, approval, authorization or order of any
court or governmental authority is required for the consummation by the
Acquiring Portfolio and the Acquired Portfolio of the transactions contemplated
by the Agreement, except such as have been obtained under the 1933 Act, the 1934
Act, the 1940 Act, the rules and regulations under those Acts and such as may be
required under state securities laws.
The foregoing opinions are given only with respect to laws, regulations
or orders which are presently in effect. We assume no obligation to update or
supplement this opinion to reflect any facts or circumstances which may
hereafter occur whether the same are retroactively or prospectively applied.
This opinion is being rendered to the Acquired Portfolio and the
Acquiring Portfolio and may be relied upon only by the Acquired Portfolio and
the Acquiring Portfolio and the shareholders of each and may not be published by
the Acquired Portfolio and the Acquiring Portfolio or relied upon in any respect
by any third party, without the prior written consent of a partner in this law
firm.
Very truly yours,
XXXXXXXX, XXXXX, XXXXXXX & XXXXX, LLP
By: Xxxxxx X. Xxxxxxxxxxx, a Partner
