Stradley Ronon Stevens & Young, LLP2005 Market Street, Suite 2600Philadelphia, PA 19103Telephone 215.564.8000Fax 215.564.8120www.stradley.com
 | Xxxxxxxx Xxxxx Xxxxxxx & Xxxxx, LLP 2005 Xxxxxx Xxxxxx, Xxxxx 0000 Xxxxxxxxxxxx, XX 00000 Xxxxxxxxx 215.564.8000 Fax 000.000.0000 xxx.xxxxxxxx.xxx | |||||||
[…], 2024
Board of Trustees, Prospector Funds, Inc.
000 Xxxxxx Xxxxxx
Guilford, CT 06437
Board of Trustees, Managed Portfolio Series
000 Xxxx Xxxxxxxx Xxxxxx
Milwaukee, WI 53202
Re: Agreement and Plan of Reorganization (“Agreement”) adopted as of the […] day of […], 2024, by and among (i) Prospector Funds, Inc., an open-end registered investment company, identified on Exhibit A hereto (“Target Entity”), on behalf of its series, the Prospector Capital Appreciation Fund and Prospector Opportunity Fund, identified on Exhibit A hereto (each, a “Target Fund,” and together, the “Target Funds”); (ii) Managed Portfolio Series, an open-end registered investment company, identified on Exhibit A hereto (“Acquiring Entity”), on behalf of its series, the Prospector Capital Appreciation Fund and Prospector Opportunity Fund identified on Exhibit A hereto (each, an “Acquiring Fund,” and together, the “Acquiring Funds,” and each Target Fund and each Acquiring Fund, a “Fund”); and (iii) solely for the purposes of Sections 1.1(f), 11.1 and 11.2 of the Agreement, Prospector Partners Asset Management, LLC (“Prospector”), investment adviser of each Target Fund and each Acquiring fund
Philadelphia, PA • Harrisburg, PA • Malvern, PA • Cherry Hill, NJ • Wilmington, DE • Washington, DC • New York, NY • Chicago, IL
A Pennsylvania Limited Liability Partnership
Board of Trustees, Prospector Funds, Inc.
Board of Trustees, Managed Portfolio Series
[…], 2024
Page 2
Ladies and Gentlemen:
You have requested our opinion as to certain federal income tax consequences of each Reorganization, which will consist of: (i) each Acquiring Fund acquiring the Assets and Liabilities of the corresponding Target Fund in exchange for the corresponding Acquiring Fund shares of equal value to the net assets of the Target Fund being acquired, and (ii) the Target Fund distributing such shares of the corresponding Acquiring Fund to shareholders of the Target Fund, in complete liquidation of the Target Fund, in each case, all upon the terms and conditions set forth in the Agreement. Capitalized terms not otherwise defined herein shall have the meanings assigned to them in the Agreement.
In rendering our opinion, we have reviewed and relied upon: (a) a copy of the executed Agreement, adopted as of the […] day of […], 2024; (b) the Prospectus/Proxy Statement provided to shareholders of the Target Fund dated […], 2024; (c) certain representations concerning the Reorganization made to us by each Target Entity, on behalf of its respective series identified on Exhibit A hereto, and each Acquiring Entity, on behalf of its respective series identified on Exhibit A hereto (the “Representation Letter”); (d) all other documents, financial and other reports and corporate minutes we deemed relevant or appropriate; and (f) such statutes, regulations, rulings and decisions as we deemed material in rendering this opinion.
For purposes of this opinion, we have assumed that each Target Fund on the Closing Date of the Reorganization satisfies, and, immediately following the Closing Date of the Reorganization, each Acquiring Fund will continue to satisfy, the requirements of Subchapter M of the Internal Revenue Code of 1986, as amended (the “Code”), for qualification as regulated investment companies.
Based on the foregoing, and provided each Reorganization is carried out in accordance with the applicable laws of the State of Delaware, the terms of the Agreement and the statements in the Representation Letter for each Target Entity, on behalf of its respective series identified on Exhibit A hereto, and for each Acquiring Entity, on behalf of its respective series identified on Exhibit A hereto, it is our opinion that for federal income tax purposes:
1.The acquisition by the Acquiring Fund of all of the Assets of its corresponding Target Fund in exchange for the Acquiring Fund shares and the assumption by the corresponding Acquiring Fund of the Liabilities of its corresponding Target Fund, followed by the distribution by the Target Fund to its shareholders of the Acquiring Fund shares in complete liquidation of the Target Fund, will qualify as a reorganization within the meaning of Section 368(a)(1) of the Code, and the Target Fund and Acquiring Fund each will be a “party to the reorganization” within the meaning of Section 368(b) of the Code.
2.No gain or loss will be recognized by the Target Fund upon the transfer of all of its Assets to, and assumption of its Liabilities by, its corresponding Acquiring Fund in
Board of Trustees, Prospector Funds, Inc.
Board of Trustees, Managed Portfolio Series
[…], 2024
Page 3
exchange solely for the Acquiring Fund shares pursuant to Sections 361(a) and 357(a) of the Code.
3.No gain or loss will be recognized by the Acquiring Fund upon the receipt by it of all of the Assets of its corresponding Target Fund in exchange solely for the Acquiring Fund shares and the assumption by the Acquiring Fund of the Liabilities of its corresponding Target Fund pursuant to Section 1032(a) of the Code.
4.No gain or loss will be recognized by the Target Fund upon the distribution of its corresponding Acquiring Fund shares to its shareholders in complete liquidation of the Target Fund pursuant to Section 361(c)(1) of the Code.
5.The tax basis of each Asset of the Target Fund received by its corresponding Acquiring Fund will be the same as the tax basis of such Asset to the Target Fund immediately prior to the exchange pursuant to Section 362(b) of the Code.
6.The holding period of each Asset of the Target Fund received by its corresponding Acquiring Fund will include the periods during which such Asset was held by the Target Fund pursuant to Section 1223(2) of the Code.
7.No gain or loss will be recognized by the shareholders of the Target Fund upon the exchange of their Target Fund shares for its corresponding Acquiring Fund shares (including fractional shares to which they may be entitled), pursuant to Section 354(a) of the Code.
8.The aggregate tax basis of the Acquiring Fund shares received by each shareholder of the Target Fund (including fractional shares to which they may be entitled) will be the same as the aggregate tax basis of the shareholder’s Target Fund shares exchanged therefor pursuant to Section 358(a)(1) of the Code.
9.The holding period of the Acquiring Fund shares received by each shareholder of the Target Fund (including fractional shares to which they may be entitled) will include the shareholder’s holding period of the Target Fund shares surrendered in exchange therefor, provided that such Target Fund shares were held as a capital asset on the date of the Reorganization pursuant to Section 1223(1) of the Code.
10.The taxable year of the Target Fund will not end as a result of the Reorganization. For the purposes of Section 381 of the Code, the Acquiring Fund will succeed to and take into account, as of the date of the transfer as defined in Section 1.381(b)-1(b) of the regulations issued by the United States Department of the Treasury (the “Income Tax Regulations”), the items of the Target Fund described in Section 381(c) of the Code as if there had been no Reorganization, subject to the conditions and limitations specified in Sections 381, 382, 383 and 384 of the Code and, if applicable, the Income Tax Regulations promulgated thereunder.
Board of Trustees, Prospector Funds, Inc.
Board of Trustees, Managed Portfolio Series
[…], 2024
Page 4
Notwithstanding anything to the contrary herein, we express no opinion as to the effect of the Reorganization on the Target Funds, the Acquiring Funds or any Target Fund shareholders with respect to any asset (including without limitation any stock held in a passive foreign investment company as defined in Section 1297(a) of the Code or any contract described in Section 1256(b) of the Code) as to which any unrealized gain or loss is required to be recognized for federal income tax purposes upon the transfer of such asset regardless of whether such transfer would otherwise be a nonrecognition transaction under the Code.
Our opinion is based upon the Code, the applicable Income Tax Regulations, the present positions of the Internal Revenue Service (the “Service”) as are set forth in published revenue rulings and revenue procedures, present administrative positions of the Service, and existing judicial decisions, all of which are subject to change either prospectively or retroactively. We do not undertake to make any continuing analysis of the facts or relevant law following the date of the Reorganization.
Our opinion is conditioned upon the performance by each Target Fund and each Acquiring Fund, of the undertakings in the Agreement and the Representation Letter. Except as expressly set forth above, we express no other opinion to any party as to the tax consequences, whether federal, state, local or foreign, with respect to (i) the Reorganization or any transaction related to or contemplated by such Reorganization (or incident thereto) or (ii) the effect, if any, of the Reorganization on any other transaction and/or the effect, if any, of any such other transaction on the Reorganization.
Board of Trustees, Prospector Funds, Inc.
Board of Trustees, Managed Portfolio Series
[…], 2024
Page 5
We hereby consent to the use of this opinion as an exhibit to the registration statement of each Acquiring Fund on Form N-14, and any amendments thereto, covering the registration of Acquiring Fund shares under the Securities Act of 1933, as amended, to be issued in the Reorganization.
Very truly yours,
XXXXXXXX XXXXX XXXXXXX & XXXXX, LLP
EXHIBIT A
| TARGET FUND AND TARGET ENTITY | ACQUIRING FUND AND ACQUIRING ENTITY | CLOSING DATE | ||||||
Prospector Capital Appreciation Fund, a series of Prospector Funds Inc. | Prospector Capital Appreciation Fund, a series of Managed Portfolio Series | […], 202 | ||||||
Prospector Opportunity Fund, a series of Prospector Funds Inc. | Prospector Opportunity Fund, a series of Managed Portfolio Series | […], 202 | ||||||
