[Clifford Chance US LLP Letterhead]
June 15, 2006
Xxxxxx Xxxxxxx Aggressive Equity Fund
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxx Capital Opportunities Trust
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Re: Agreement and Plan of Reorganization for the Exchange of Shares of
Xxxxxx Xxxxxxx Capital Opportunities Trust for Substantially All of
the Assets of Xxxxxx Xxxxxxx Aggressive Equity Fund
Ladies and Gentlemen:
We have acted as counsel to Xxxxxx Xxxxxxx Aggressive Equity Fund (the
"Target Fund"), an open-end management investment company, and Xxxxxx Xxxxxxx
Capital Opportunities Trust (the "Acquiring Fund"), an open-end management
investment company, in connection with the transactions involving the Target
Fund and the Acquiring Fund (the "Reorganization"), which are proposed to occur
pursuant to and in accordance with the terms of the Agreement and Plan of
Reorganization, dated April 25, 2006 (the "Reorganization Agreement"), between
the Target Fund and the Acquiring Fund, as described in the Registration
Statement on Form N-14, File No. 133721, filed pursuant to the Securities Act of
1933 on May 1, 2006 as amended through the date hereof (the "Registration
Statement"), including the Joint Proxy Statement and Prospectus (the "Proxy
Statement"), filed as part of the Registration Statement. Pursuant to the
Reorganization, substantially all of the assets of the Target Fund will be
transferred to the Acquiring Fund in exchange for the assumption by the
Acquiring Fund of all stated liabilities of the Target Fund and shares of the
Acquiring Fund (the "Acquiring Fund Shares"). The Target Fund will distribute
the Acquiring Fund Shares received to its shareholders (the "Shareholders") in
liquidation of the Target Fund. After the Reorganization, the Target Fund will
cease to operate, will have no assets remaining, and will be deregistered as an
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act") and dissolved under the laws of the Commonwealth of Massachusetts.
All capitalized terms used herein, unless otherwise defined, have the meanings
set forth in the Reorganization Agreement. This opinion letter is being
delivered in connection with Pre-Effective Amendment No. 1 to the 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, Proxy Statement and
other documents, exhibits, attachments and schedules contained therein, (iii)
written representations and covenants of the Acquiring Fund and the Target Fund
concerning certain facts underlying and relating to the Reorganization set forth
in a letter dated as of the date hereof (the "Representation Letter"), 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 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 these opinions that (i)
the representations of the Acquiring Fund and the Target Fund set forth in the
Representation Letter are true, complete and correct and will remain true,
complete and correct at all times up to and including the Closing Date, without
regard to any qualification set forth in the Representation Letter to the effect
that a representation therein is made to a person's knowledge; (ii) the
statements made concerning the Reorganization in the Reorganization Agreement
and the Proxy Statement are true, complete and correct and will remain true,
complete and correct at all times up to and including the Closing Date; (iii)
the Reorganization will be consummated in accordance with the terms of the
Reorganization Agreement; and (iv) the Acquiring Fund and the Target Fund have
complied with and will continue to comply with the covenants and agreements set
forth in the Representation Letter and the Reorganization Agreement. Our
opinions could be affected if any of the facts set forth in the Reorganization
Agreement, the Proxy Statement or the Representation Letter are or become
inaccurate or if there is a failure to comply with any of the covenants and
agreements set forth in the Reorganization Agreement or the Representation
Letter.
The opinions set forth below are based on the Internal Revenue Code of
1986, as amended (the "Code"), the legislative history with respect thereto,
rules and regulations promulgated by the Treasury Department thereunder, court
decisions, and published rulings and administrative pronouncements issued by the
Internal Revenue Service 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, or that a court considering these issues would not
hold contrary to such opinions.
Based on and subject to the foregoing, and subject to the
qualifications and limitations stated herein and such examinations of law as we
have deemed necessary, we are of the opinion that, for U.S. federal income tax
purposes:
1. The transfer of the Target Fund's assets in exchange for the
Acquiring Fund Shares and the assumption by the Acquiring Fund of
certain stated liabilities of the Target Fund followed by the
distribution by the Target Fund of the Acquiring Fund Shares to
the Shareholders in exchange for their Target Fund 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 the Target Fund and the
Acquiring Fund will each be a "party to a reorganization" within
the meaning of Section 368(b) of the Code;
2. No gain or loss will be recognized by the Acquiring Fund upon the
receipt of the assets of the Target Fund solely in exchange for
the Acquiring Fund Shares and the assumption by the Acquiring Fund
of the stated liabilities of the Target Fund;
3. No gain or loss will be recognized by the Target Fund upon the
transfer of the assets of the Target Fund to the Acquiring Fund
solely in exchange for the Acquiring Fund Shares and the
assumption by the Acquiring Fund of the stated liabilities or upon
the distribution of the Acquiring Fund Shares to the Shareholders
in exchange for their Target Fund shares;
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4. No gain or loss will be recognized by the Shareholders upon the
exchange of the shares of the Target Fund for the Acquiring Fund
Shares;
5. The aggregate tax basis for the Acquiring Fund Shares received by
each of the Shareholders pursuant to the Reorganization will be
the same as the aggregate tax basis of the shares in the Target
Fund held by each such Shareholder immediately prior to the
Reorganization;
6. The holding period of the Acquiring Fund Shares to be received by
each Shareholder will include the period during which the shares
in the Target Fund surrendered in exchange therefor were held
(provided such shares in the Target Fund were held as capital
assets on the date of the Reorganization);
7. The tax basis of the assets of the Target Fund acquired by the
Acquiring Fund will be the same as the tax basis of such assets of
the Target Fund immediately prior to the Reorganization;
8. The holding period of the assets of the Target Fund in the hands
of the Acquiring Fund will include the period during which those
assets were held by the Target Fund; and
9. The statements in the Proxy Statement under the heading "THE
REORGANIZATION - Tax Aspects of the Reorganization" are correct in
all material respects to the extent they constitute matters of law
or legal conclusions.
We express our opinions herein only as to those matters specifically
set forth above and no opinion should be inferred as to the tax consequences of
the Reorganization under any state, local or foreign law, or with respect to
other areas of U.S. federal taxation. The opinions stated above represent our
conclusions as to the application of the U.S. federal income tax laws existing
as of the date of this letter to the Reorganization. We can give no assurance
that legislative enactments, administrative changes or court decisions may not
be forthcoming that would modify or supersede our opinions.
The opinions set forth above represent our conclusions based upon the
assumptions, documents, facts and representations referred to above. Any
material amendments to such documents, changes in any significant facts or
inaccuracy of such assumptions or representations could affect the accuracy of
our opinions. The opinions set forth herein are as of the date hereof, and we
undertake no obligation to update these opinions in the event that there is
either a change in the legal authorities, facts or documents on which these
opinions are based or an inaccuracy in the representations or assumptions on
which we have relied in rendering these opinions.
These opinions are being provided to you solely in connection with the
filing of the Registration Statement. These opinions may not be relied on 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 letter with the
Securities and Exchange Commission as an exhibit to the Registration Statement
and to the references therein to us under the headings "SYNOPSIS - Tax
Consequences of the Reorganization," "THE REORGANIZATION - Tax Aspects of the
Reorganization" and "LEGAL MATTERS." In giving such consent, we do not hereby
admit that we are within the category of persons whose consent is required under
Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission promulgated thereunder.
Very truly yours,
/c/ Clifford Chance US LLP
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