Morgan, Lewis & Bockius LLP Philadelphia, PA 19103-2921
EX-99.12
Xxxxxx, Xxxxx
& Xxxxxxx LLP
0000 Xxxxxx
Xxxxxx
Xxxxxxxxxxxx,
XX 00000-0000
November
23, 2009
Board of
Trustees
The
Advisors’ Inner Circle Fund II
Xxx
Xxxxxxx Xxxxxx Xxxxx
Xxxx,
Xxxxxxxxxxxx 00000
Board of
Trustees
0000
Xxxxxx Xxxxxx
00xx
Xxxxx
Xxxxxxxxxxxx,
XX 00000
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Re:
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Agreement
and Plan of Reorganization, dated as of August 28, 2009 (the “Agreement”),
by and between The Advisors’ Inner Circle Fund II, a Massachusetts
business trust (the “AIC Trust”), on behalf of its Aberdeen Emerging
Markets Fund (the “Reorganizing Fund”), and Aberdeen Funds, a Delaware
statutory trust (the “Aberdeen Trust”), on behalf of its Aberdeen Emerging
Markets Institutional Fund (the “Surviving
Fund”).
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Ladies
and Gentlemen:
You have
requested our opinion as to certain U.S. federal income tax consequences of the
reorganization of the Reorganizing Fund and the Surviving Fund (the
“Reorganization”). The Reorganization will involve the transfer of
all of the assets of a Reorganizing Fund to the Surviving Fund, a newly created
series of the Aberdeen Trust, and the assumption of the liabilities of the
Reorganizing Fund by the Surviving Fund in exchange for shares of beneficial
interest of the Surviving Fund. These shares of the Surviving Fund
will be distributed to the shareholders of the Reorganizing Fund, following
which the Reorganizing Fund will be liquidated. In the distribution,
holders of shares of the Reorganizing Fund will receive shares of the Surviving
Fund.1
1 In the
Reorganization, shareholders of Institutional Class shares of the Reorganizing
Fund will receive newly organized shares of the Institutional Class of the
Surviving Fund.
Philadelphia Washington New
York Los Angeles San
Francisco Miami Pittsburgh Princeton Chicago Minneapolis
Palo
Alto Dallas Houston Harrisburg Irvine Boston London Paris Brussels Frankfurt Beijing Tokyo
Boards of
Trustees
November
23, 2009
Page
2
In
rendering our opinion, we have reviewed and relied upon (a) the Agreement, (b)
the proxy materials provided to shareholders of the Reorganizing Fund in
connection with the recently held Special Meeting of Shareholders, (c) certain
representations concerning the Reorganization made to us in letters from the AIC
Trust and Aberdeen Trust dated November 20, 2009 (collectively, the
“Representation Letters”), (d) all other documents, financial and other reports
and corporate minutes that we deemed relevant or appropriate, and (e) such
statutes, regulations, rulings and decisions as we deemed material with respect
to 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 the Reorganizing Fund on
the Closing Date of the Reorganization satisfy, and following the
Reorganization, the Surviving 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 specified Reorganization is carried out in
accordance with the applicable laws of the Commonwealth of Massachusetts and the
State of Delaware, the Agreement and the Representation Letters, it is our
opinion, with respect to the Reorganization that:
1. The
Reorganization will constitute a tax-free reorganization within the meaning of
Section 368(a)(1)(F) of the Code, and the Reorganizing Fund and the Surviving
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 Reorganizing Fund upon the transfer of
all of its assets to the Surviving Fund in exchange solely for the Surviving
Fund Shares and the assumption by the Surviving Fund of the Reorganizing Fund’s
liabilities or upon the distribution of the Surviving Fund Shares to the
Reorganizing Fund’s shareholders in exchange for their shares of the
Reorganizing Fund.
3. No
gain or loss will be recognized by the Surviving Fund upon the receipt by it of
all of the assets of the Reorganizing Fund in exchange solely for Surviving Fund
Shares and the assumption by the Surviving Fund of the liabilities of the
Reorganizing Fund.
4. The
adjusted tax basis of the assets of the Reorganizing Fund received by the
Surviving Fund will be the same as the adjusted tax basis of such assets to the
Reorganizing Fund immediately prior to the Reorganization.
5. The
holding period of the assets of the Reorganizing Fund received by the Surviving
Fund will include the holding period of those assets in the hands of the
Reorganizing Fund immediately prior to the Reorganization.
6. No
gain or loss will be recognized by the shareholders of the Reorganizing Fund
upon the exchange of their Reorganizing Fund Shares for the Surviving Fund
Shares
Boards of
Trustees
November
23, 2009
Page
3
(including
fractional shares to which they may be entitled) and the assumption by the
Surviving Fund of the liabilities of the Reorganizing Fund.
7. The
aggregate adjusted tax basis of the Surviving Fund Shares received by the
shareholders of the Reorganizing Fund (including fractional shares to which they
may be entitled) pursuant to the Reorganization will be the same as the
aggregate adjusted tax basis of the Reorganizing Fund Shares held by the
Reorganizing Fund’s shareholders immediately prior to the
Reorganization.
8. The
holding period of the Surviving Fund Shares received by the shareholders of the
Reorganizing Fund (including fractional shares to which they may be entitled)
will include the holding period of the Reorganizing Fund Shares surrendered in
exchange therefore, provided that the Reorganizing Fund Shares were held as a
capital asset on the Closing Date.
9. The Surviving 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 Treasury Regulations) the items of the Reorganizing Fund described in
Section 381(c) of the Code subject to the conditions and limitations specified
in Sections 381(b) and (c) of the Code and the regulations
thereunder.
Notwithstanding the foregoing opinions,
no opinion is expressed as to the effect of the Reorganization on (i) the
Reorganizing Fund or the Surviving Fund with respect to any asset as to which
any unrealized gain or loss is required to be recognized for U.S. federal income
tax purposes at the end of a taxable year (or on the termination or transfer
thereof) under a xxxx-to-market system of accounting and (ii) any shareholder of
the Reorganizing Fund that is required to recognize unrealized gains and losses
for U.S. federal income tax purposes under a xxxx-to-market system of
accounting.
This opinion letter expresses our views
only as to U.S. federal income tax laws in effect as of the date
hereof. It represents our best legal judgment as to the matters
addressed herein, but is not binding on the Internal Revenue Service or the
courts. Accordingly, no assurance can be given that the opinions and
analysis expressed herein, if contested, would be sustained by a
court. Our opinion is based upon the Code, the applicable Treasury
Regulations promulgated thereunder, the present position of the Internal Revenue
Service as set forth in published revenue rulings and revenue procedures,
present administrative positions of the Internal Revenue 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 this letter.
Our opinion is conditioned upon the
performance by the AIC Trust and Aberdeen Trust of their respective undertakings
in the Agreement and the Representation Letters.
Boards of
Trustees
November
23, 2009
Page
4
This opinion is being rendered to
Aberdeen Trust, on behalf of the Surviving Fund, and the AIC Trust, on behalf of
the Reorganizing Fund, and may be relied upon only by the Aberdeen Trust, the
AIC Trust, the Reorganizing Fund, the Surviving Fund and their respective
shareholders. We hereby consent to the use of this opinion as an
exhibit to an amendment to the Aberdeen Trust's Registration Statement on
Form N-14.
Very
truly yours,
/s/ Xxxxxx, Xxxxx & Xxxxxxx LLP
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