Investment Managers Series Trust 803 West Michigan Street Milwaukee, Wisconsin 53233
[ ],
2009
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000
Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxxxxxx 00000
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X.X.
Xxxxxxx & Co. Growth Fund, Inc.
000
Xxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
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Ladies
and Gentlemen:
This
opinion is furnished to you pursuant to paragraph 8.5 of the Agreement and Plan
of Reorganization (the “Agreement”), dated as
of [October 20], 2009, by and among Investment Managers Series Trust,
a Delaware statutory trust (the “Trust”), on behalf of
X.X. Xxxxxxx & Co. Growth Fund, a series thereof (the “Acquiring Fund”), and
X.X. Xxxxxxx & Co. Growth Fund, Inc., a Maryland corporation (the “Acquired
Fund”). All capitalized terms not otherwise defined herein
have the meanings ascribed to them in the Agreement. The Agreement
contemplates the acquisition of all of the Assets of the Acquired Fund by the
Acquiring Fund in exchange for (a) the
assumption by the Acquiring Fund of the Liabilities of the Acquired Fund and
(b) the
issuance and delivery by the Trust, on behalf of the Acquiring Fund, to the
Acquired Fund, for distribution, in accordance with paragraph 1.4 of the
Agreement, pro rata to the Acquired Fund Stockholders in exchange for the
Acquired Fund Shares and in complete liquidation of the Acquired Fund, of a
number of Acquiring Fund Shares equal in the aggregate to the number of Acquired
Fund Shares (the “Transaction”).
In
connection with this opinion we have examined and relied upon the originals or
copies, certified or otherwise identified to us to our satisfaction, of the
Agreement and related documents (collectively, the “Transaction
Documents”). In that examination, we have assumed the
genuineness of all signatures, the capacity and authority of each party
executing a document to so execute the document, the authenticity and
completeness of all documents purporting to be originals (whether reviewed by us
in original or copy form) and the conformity to the originals of all documents
purporting to be copies (including electronic copies). We have also
assumed that each agreement and other instrument reviewed by us is valid and
binding on the party or parties thereto and is enforceable in accordance with
its terms, and that there are no contracts, agreements, arrangements, or
understandings, either written or oral, that are inconsistent with or that would
materially alter the terms of the Agreement or the other Transaction
Documents.
As to
certain factual matters, we have relied with your consent upon, and our opinion
is limited by, the representations of the various parties set forth in the
Transaction Documents and in certificates of the Trust and the Acquired Fund
dated as of the date hereof (the “Certificates”). Our
opinion assumes (i) that all representations set forth in the Transaction
Documents and in the Certificates will be true and correct in all material
respects as of the date of each of the Transactions, and (ii) that the
Agreement is implemented in accordance with its terms and consistent with the
representations set forth in the Transaction Documents and
Certificates. Our opinion is limited solely to the provisions of the
Internal Revenue Code of 1986, as amended and as presently in effect (the “Code”), existing case
law, existing permanent and temporary treasury regulations promulgated under the
Code (“Treasury
Regulations”), and existing published revenue rulings and procedures of
the Internal Revenue Service that are in effect as of the date hereof, all of
which are subject to change and new interpretation, both prospectively and
retroactively. We assume no obligation to update our opinion to
reflect other facts or any changes in law or in the interpretation thereof that
may hereafter occur.
A/73174050.1
On the
basis of and subject to the foregoing, we are of the opinion that, for United
States federal income tax purposes:
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1.
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The
transfer of all of the Assets in exchange solely for Acquiring Fund Shares
and the assumption by the Acquiring Fund of the Liabilities (followed by
the distribution of those Acquiring Fund Shares to the Acquired Fund
Stockholders and the termination of the Acquired Fund) will constitute a
“reorganization” within the meaning of Section 368(a)(1)(F) of the Code,
and each Fund will be a “party to a reorganization” within the meaning of
Section 368(b) of the Code.
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2.
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No
gain or loss will be recognized by the Acquiring Fund upon the receipt of
the Assets solely in exchange for Acquiring Fund Shares and the assumption
by the Acquiring Fund of the
Liabilities.
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3.
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No
gain or loss will be recognized by the Acquired Fund upon the transfer of
the Assets to the Acquiring Fund in exchange for Acquiring Fund Shares and
the assumption by the Acquiring Fund of the Liabilities or upon the
distribution of those Acquiring Fund Shares to the Acquired Fund
Stockholders in exchange for such stockholders’ Acquired Fund
Shares.
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4.
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No
gain or loss will be recognized by the Acquired Fund Stockholders upon the
exchange of their Acquired Fund Shares for Acquiring Fund Shares in the
Transaction.
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5.
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The
aggregate tax basis for Acquiring Fund Shares received by an Acquired Fund
Stockholder pursuant to the Transaction will be the same as the aggregate
tax basis of the Acquired Fund Shares exchanged therefor by such
stockholder.
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6.
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The
holding period of Acquiring Fund Shares received by an Acquired Fund
Stockholder in the Transaction will include the period during which the
Acquired Fund Shares exchanged therefor were held by such stockholder,
provided the Acquired Fund Shares are held as capital assets at the
Effective Time.
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7.
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The
Acquiring Fund’s tax basis in each Asset will be the same as the tax basis
of such Asset to the Acquired Fund immediately prior to the
Transaction.
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A/73174050.1
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8.
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The
holding period of each Asset in the hands of the Acquiring Fund will
include the period during which that Asset was held by the Acquired
Fund.
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9.
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The
Transaction will not result in the termination of the Acquired Fund’s
taxable year and the part of the Acquired Fund’s taxable year before the
Transaction will be included in the Acquiring Fund’s taxable year after
the Transaction. The Acquiring Fund will succeed to and take
into account the items of the Acquired Fund described in Section 381(c) of
the Code as of the close of the date of the Transaction, subject to any
applicable conditions and limitations specified in Sections 381, 382, 383
and 384 of the Code and the Treasury Regulations
thereunder.
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This
opinion is being delivered solely to you for your use in connection with the
referenced Transaction, and may not be relied upon by any other person or used
for any other purpose.
Very
truly yours,
XXXXXXX
XxXXXXXXX LLP
A/73174050.1
