Exhibit 99.12
MAYER, BROWN, XXXX & MAW LLP
000 Xxxxx Xx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
MAIN TELEPHONE
(000) 000-0000
MAIN FAX
(000) 000-0000
November 26, 2003
To the Parties Listed on Schedule I Attached Hereto
Re: Agreement and Plan of Reorganization for the Exchange of Shares of the
Xxxxxx Xxxxxxx Institutional Fund Trust U.S. Small Cap Value Portfolio for
Substantially All of the Assets of the Xxxxxx Xxxxxxx Institutional Fund
Trust Strategic Small Value Portfolio
Ladies and Gentlemen:
We have acted as counsel to the Strategic Small Value Portfolio (the
"Target Fund"), a separate portfolio of the Xxxxxx Xxxxxxx Institutional Fund
Trust (the "Trust"), a Pennsylvania business trust, and to the U.S. Small Cap
Value Portfolio (the "Acquiring Fund"), a separate portfolio of the Trust in
connection with the proposed transfer of substantially all of the assets of the
Target Fund to the Acquiring Fund and certain other transactions related thereto
pursuant to and in accordance with the terms of the Agreement and Plan of
Reorganization, dated as of October 23, 2003, by and between the Trust, on
behalf of the Acquiring Fund, and the Trust, on behalf of the Target Fund (the
"Reorganization Agreement" and such transactions, the "Reorganization"). You
have requested that we provide an opinion regarding the treatment of the
Reorganization under the Internal Revenue Code of 1986, as amended (the "Code"),
and the accuracy of the tax disclosures in the proxy statement and prospectus
(the "Proxy Statement and Prospectus") on Exhibit 12 to the Form N-14
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 on Form N-14 for the
Reorganization, and the Proxy Statement and Prospectus and other documents,
exhibits, attachments and schedules contained therein, (iii) written
representations of Xxxxxx Xxxxxxx Investments LP (the "Advisor") concerning
certain facts underlying and relating to the Reorganization set forth in a
letter dated as of the date hereof, 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
Brussels Charlotte Chicago Cologne Frankfurt Houston London Los Angeles
Manchester New York Palo Alto Paris Washington, D.C. Independent Mexico City
Correspondent: Jauregui, Navarrete, Xxxxx x Xxxxx, S.C.
Mayer, Brown, Xxxx & Maw LLP operates in combination with our associated
English limited liability partnership in the offices listed above.
MAYER, BROWN, XXXX & MAW LLP
November 26, 2003
Page 2
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 our opinions (i) the
accuracy of, and material compliance with, the representations of the
Advisors set forth in the letters referred to above, (ii) the accuracy of,
and material compliance with, the representations, warranties, covenants and
agreements of the Trust, on behalf of Target Fund and the Acquiring Fund made
in the Reorganization Agreement, and (iii) that there are no agreements or
understandings other than those of which we have been informed that would
affect our conclusions set forth below.
The opinions set forth below are based on the Code, the legislative
history with respect thereto, rules and regulations promulgated thereunder,
and published rulings, court decisions and administrative authorities issued
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.
Any change occurring after the date hereof in, or a variation from, any
of the foregoing factual or legal bases for our opinions could affect the
conclusions set forth below.
In addition, the opinions expressed herein are given as of the date
hereof and we express no obligation to advise you of any changes in the law
or events that may hereafter come to our attention that could affect our
opinions set forth below.
Based on the foregoing, we are of the opinion that, for U.S. Federal
income tax purposes:
1. The summaries of U.S. Federal income tax consequences set forth in
the Proxy Statement and Prospectus under the headings "Synopsis - Tax
Consequences of the Reorganization," "The Reorganization - The Board's
Consideration" and "The Reorganization - Tax Aspects of the Reorganization"
are accurate in all material respects as to matters of law and legal
conclusions.
2. The transfer of the Target Fund's assets in exchange for 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 Target Fund 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.
3. 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.
MAYER, BROWN, XXXX & MAW LLP
November 26, 2003
Page 3
4. 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 in exchange
for the Acquiring Fund shares and the assumption by the Acquiring Fund of the
stated liabilities of the Target Fund or upon the distribution of the
Acquiring Fund shares to the Target Fund shareholders in exchange for their
Target Fund shares.
5. No gain or loss will be recognized by the Target Fund shareholders
upon the exchange of the Target Fund shares for the Acquiring Fund shares.
6. The aggregate tax basis for the Acquiring Fund shares received by
each Target Fund shareholder pursuant to the Reorganization will be the same
as the aggregate tax basis of the Target Fund shares held by each such Target
Fund shareholder immediately prior to the Reorganization.
7. The holding period of the Acquiring Fund shares to be received by
each Target Fund shareholder will include the period during which the Target
Fund shares surrendered in exchange therefor were held (provided such Target
Fund shares are held as capital assets on the date of the Reorganization).
8. 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 to the Target
Fund immediately prior to the Reorganization.
9. 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.
These opinions are being provided to you solely in connection with the
filing of the Registration Statement for the Reorganization. This opinion may
not be relied upon by you for any other purposes or relied upon by, or
furnished to, any other person without our prior written consent.
We hereby consent to the filing of this opinion as an exhibit to the
Proxy Statement and Prospectus and to all references to this firm under the
headings "Synopsis - Tax Consequences of the Reorganization, "The
Reorganization - The Board's Consideration" and "The Reorganization - Tax
Aspects of the Reorganization" in the Proxy Statement and Prospectus.
Sincerely,
/s/ MAYER, BROWN, XXXX & MAW LLP
JRB/KRA
Schedule I
Xxxxxx Xxxxxxx Institutional Fund Trust
U.S. Small Cap Value Portfolio
One Tower Bridge
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxxxxxxxxx, XX 00000-0000
Xxxxxx Xxxxxxx Institutional Fund Trust
Strategic Small Value Portfolio
One Tower Bridge
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxxxxxxxxx, XX 00000-0000
