EXHIBIT 12B
[XXXX AND XXXX LLP LETTERHEAD]
DRAFT, SUBJECT TO CHANGE
_____________________, 2002
Harbor International Fund
Harbor International Fund II
One SeaGate
Toledo, Ohio 43666
Ladies and Gentlemen:
This opinion is being delivered to you in connection with the Agreement
and Plan of Reorganization (the "Agreement"), made as of ___________, 2002
between Harbor International Fund ("Acquiring Fund") and Harbor International
Fund II ("Acquired Fund"), each a series of Harbor Fund, a Delaware business
trust. Pursuant to the Agreement, Acquiring Fund acquired all of the assets of
Acquired Fund in exchange solely for (i) the assumption by Acquiring Fund of all
of the liabilities of Acquired Fund (the "Acquired Fund Liabilities") and (ii)
the issuance of shares of beneficial interest of the Institutional Class of the
Acquiring Fund (the "Acquiring Fund Shares") to Acquired Fund, followed by the
distribution by Acquired Fund, in liquidation of Acquired Fund, of the Acquiring
Fund Shares to the shareholders of Acquired Fund and the termination of Acquired
Fund (the foregoing together constituting the "Transaction"). All section
references, unless otherwise indicated, are to the United States Internal
Revenue Code of 1986, as amended (the "Code").
In rendering this opinion, we have examined and relied upon (i) the
combined prospectus for Acquiring Fund and Acquired Fund dated March 1, 2002;
(ii) the combined statement of additional information for Acquiring Fund and
Acquired Fund dated March 1, 2002; (iii) the proxy statement and prospectus on
Form N-14 (the "Proxy Statement"); (iv) the Agreement; (v) the tax
representation certificates delivered pursuant to Section 7.5 of the Agreement
(the "Representation Certificates"); and (vi) such other documents as we deemed
necessary or relevant to our analysis.
In our examination of documents, we have assumed the authenticity of
original documents, the accuracy of copies, the genuineness of signatures, and
the legal capacity of signatories. We have assumed that all parties to the
Agreement and to any other documents examined by us have acted, and will act, in
accordance with the terms of such Agreement and documents and that the
Transaction will be consummated pursuant to the terms and conditions set forth
in the Agreement without the waiver or modification of any such terms and
conditions. Furthermore, we have assumed that all representations contained in
the Agreement, as well as those representations contained in the Representation
Certificates are, on the date hereof, and will be, at the consummation of the
Transaction, true and complete in all material respects, and that any
representation made in any of the documents referred to herein "to the knowledge
and belief" (or similar qualification) of any person or party is, and at the
consummation of the Transaction will be, correct without such qualification. We
have also assumed that as to all matters for which a person or entity has
represented that such person is not a party to, does not have, or is not aware
Harbor International Fund
Harbor International Fund II
____________, 2002
Page 2
of any plan, intention, understanding or agreement, there is no such plan,
intention, understanding or agreement. We have not attempted to verify
independently such representations.
The conclusions expressed herein represent our judgment regarding the
proper treatment of the Transaction under the income tax laws of the United
States based upon the Code, case law, Treasury Regulations, and the rulings and
other pronouncements of the Internal Revenue Service (the "Service") in effect
on the date of this opinion. No assurances can be given that such laws will not
be amended or otherwise changed after the consummation of the Transaction or
that such changes will not affect the conclusions expressed herein.
Nevertheless, we undertake no responsibility to advise you of any developments
after the consummation of the Transaction in the application or interpretation
of the income tax laws of the United States.
Our opinion represents our best judgment regarding how a court would
decide if presented with the issues addressed herein and is not binding upon the
Service or any court. Moreover, our opinion does not provide any assurance that
a position taken in reliance on such opinion will not be challenged by the
Service and does not constitute any representation or warranty that such
position, if so challenged, will not be rejected by a court.
This opinion addresses only the specific United States federal income
tax consequences of the Transaction set forth below, and does not address any
other federal, state, local, or foreign income, estate, gift, transfer, sales,
or other tax consequences that may result from the Transaction or any other
action (including any action taken in connection with the Transaction).
On the basis of and subject to the foregoing and in reliance upon the
representations, facts and assumptions described above, we are of the opinion
that the acquisition by Acquiring Fund of all of the assets of Acquired Fund
solely in exchange for the issuance of Acquiring Fund Shares to Acquired Fund
and the assumption of the Acquired Fund Liabilities by Acquiring Fund, followed
by the distribution by Acquired Fund, in liquidation of Acquired Fund, of
Acquiring Fund Shares to Acquired Fund shareholders in exchange for their
Acquired Fund Shares and the termination of Acquired Fund, will constitute a
"reorganization" within the meaning of Section 368(a) of the Code.
No opinion is expressed or implied regarding the federal income tax
consequences of other aspects of the Transaction, including but not limited to
the availability of, or limitations on, any capital loss carryforwards of
Acquired Fund, except as expressly set forth above.
This opinion is being delivered to you solely in connection with the
closing condition set forth in Section 8.5 of the Agreement. It may not be
relied upon for any other purpose or by any other person or entity, and may not
be made available to any other person or entity without our prior written
consent.
Very truly yours,
/s/ Xxxx and Xxxx LLP
XXXX AND XXXX LLP
