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XXXXXXXX XXXXX XXXXXXX & XXXXX, LLP
0000 Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Telephone 000-000-0000
Fax 000-000-0000
xxx.xxxxxxxx.xxx
June 14, 2007
Board of Trustees, Franklin Strategic Series
Xxx Xxxxxxxx Xxxxxxx
Xxx Xxxxx, XX 00000-1906
Board of Directors, Xxxxxxxx Custodian Funds, Inc.
Xxx Xxxxxxxx Xxxxxxx
Xxx Xxxxx, XX 00000-1906
RE: AGREEMENT AND PLAN OF REORGANIZATION, MADE AS OF THE 1ST DAY OF
MARCH, 2007 (THE "AGREEMENT"), BY AND BETWEEN FRANKLIN STRATEGIC
SERIES ("TRUST"), A STATUTORY TRUST CREATED UNDER THE LAWS OF THE
STATE OF DELAWARE, ON BEHALF OF ITS SERIES, FRANKLIN BLUE CHIP
FUND ("ACQUIRED FUND"), AND FRANKLIN CUSTODIAN FUNDS, INC.
("COMPANY"), A CORPORATION ORGANIZED UNDER THE LAWS OF THE STATE
OF MARYLAND, ON BEHALF OF ITS SERIES, FRANKLIN GROWTH FUND
("ACQUIRING FUND")
Gentlemen:
You have requested our opinion concerning certain federal
income tax consequences of the reorganization of Acquired Fund (the
"Reorganization"), which will consist of: (i) the acquisition by Company, on
behalf of Acquiring Fund, of substantially all of the property, assets, and
goodwill of Acquired Fund in exchange solely for full and fractional Class A,
Class B, Class C and Class R shares of common stock, par value $1.00 per share,
of Acquiring Fund ("Acquiring Fund Shares") which are voting securities; (ii)
the distribution of Acquiring Fund Shares to the shareholders of Class A, Class
B, Class C and Class R shares of Acquired Fund (the "Acquired Fund Shares"),
respectively, according to their respective interests in Acquired Fund in
complete liquidation of Acquired Fund; and (iii) the dissolution of Acquired
Fund as soon as is practicable after the closing (the "Closing"), all upon and
subject to the terms and conditions of the Agreement.
In rendering our opinion, we have reviewed and relied upon:
(a) the Agreement, made as of the 1st day of March, 2007, by Company, on behalf
of Acquiring Fund and by Trust, on behalf of Acquired Fund; (b) the proxy
materials provided to shareholders of Acquired Fund in connection with a Special
Meeting of Shareholders of Acquired Fund held on June 7, 2007; (c) certain
representations concerning the Reorganization made to us by Company, on behalf
of Acquiring Fund and by Trust, on behalf of Acquired Fund, in a letter dated
June 14, 2007 (the "Representation Letter"); (d) all other documents, financial
and other reports and corporate minutes we deemed relevant or appropriate; and
(e) such statutes, regulations, rulings and decisions as we deemed material in
rendering this opinion. All terms used herein, unless otherwise defined, are
used as defined in the Agreement.
For purposes of this opinion, we have assumed that Acquired
Fund, on the Closing of the Reorganization, satisfies, and immediately following
the Closing, 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 a regulated investment company.
Based on the foregoing, and provided the Reorganization is
carried out in accordance with the applicable laws of the State of Delaware and
State of Maryland, the terms of the Agreement and the statements in the
Representation Letter with regard to matters of fact, it is our opinion that:
1. The acquisition by Acquiring Fund of substantially all of
the assets of Acquired Fund as provided for in the Agreement in exchange solely
for Acquiring Fund Shares, followed by the distribution by Acquired Fund to its
shareholders of Acquiring Fund Shares in complete liquidation of Acquired Fund,
will qualify as a reorganization within the meaning of Section 368(a)(1) of the
Code, and Acquired 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 Acquired Fund upon
the transfer of substantially all of its assets to Acquiring Fund in exchange
solely for Acquiring Fund Shares pursuant to Section 361(a) and Section 357(a)
of the Code.
3. No gain or loss will be recognized by Acquiring Fund upon
the receipt by it of substantially all of the assets of Acquired Fund in
exchange solely for Acquiring Fund Shares pursuant to Section 1032(a) of the
Code.
4. No gain or loss will be recognized by Acquired Fund upon
the distribution of Acquiring Fund Shares to its shareholders in complete
liquidation of Acquired Fund (in pursuance of the Agreement) pursuant to Section
361(c)(1) of the Code.
5. The basis of the assets of Acquired Fund received by
Acquiring Fund will be the same as the basis of these assets to Acquired Fund
immediately prior to the exchange pursuant to Section 362(b) of the Code.
6. The holding period of the assets of Acquired Fund received
by Acquiring Fund will include the period during which such assets were held by
Acquired Fund pursuant to Section 1223(2) of the Code.
7. No gain or loss will be recognized by the shareholders of
Acquired Fund upon the exchange of their Acquired Fund Shares for Acquiring Fund
Shares (including fractional shares to which they may be entitled), pursuant to
Section 354(a) of the Code.
8. The basis of Acquiring Fund Shares received by the
shareholders of Acquired Fund (including fractional shares to which they may be
entitled) will be the same as the basis of Acquired Fund Shares exchanged
therefor pursuant to Section 358(a)(1) of the Code.
9. The holding period of Acquiring Fund Shares received by the
shareholders of Acquired Fund (including fractional shares to which they may be
entitled) will include the holding period of Acquired Fund Shares surrendered in
exchange therefor, provided that Acquired Fund Shares were held as a capital
asset on the Closing of the Reorganization pursuant to Section 1223(1) of the
Code.
10. 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 income
tax regulations issued by the United States Department of the Treasury (the
"Treasury Regulations"), the items of Acquired Fund described in Section 381(c)
of the Code, subject to the conditions and limitations specified in Sections
381, 382, 383 and 384 of the Code and the Treasury Regulations.
Our opinion is based upon the Code, the applicable Treasury
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 Closing of the Reorganization.
Our opinion is conditioned upon the performance by Company, on
behalf of Acquiring Fund, and by Trust, on behalf of Acquired Fund, of their
undertakings in the Agreement and the Representation Letter. Our opinion is
limited to the transactions incident to the Reorganization described herein, and
no opinion is rendered with respect to (i) any other transaction or (ii) the
effect, if any, of the Reorganization (and/or the transactions incident thereto)
on any other transaction and/or the effect, if any, of any such other
transaction on the Reorganization.
This opinion is being rendered to Company, on behalf of
Acquiring Fund, and to Trust, on behalf of Acquired Fund, and may be relied upon
only by such funds and the shareholders of each. We hereby consent to the use of
this opinion as an exhibit to the Registration Statement of 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
/s/XXXXXXXX XXXXX XXXXXXX & XXXXX, LLP
