Deloitte & Touche LLP
Suite 0000
000 Xxxxxxxxxxx Xx.
Xxxxxx, Xxxxxxxx 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
xxx.xxxxxxxx.xxx
Deloitte & Touche
October 17, 2003
Xxxxxxxxxxx Growth Fund
0000 Xxxxx Xxxxxx Xxx
Xxxxxxxxxx, Xxxxxxxx 00000
Dear Sirs:
We have reviewed the Agreement and Plan of Reorganization
between Xxxxxxxxxxx Select Managers, a Massachusetts
business trust, on behalf of its series Xxxxxxxxxxx Select
Managers Xxxxxxxx Growth Fund (Xxxxxxxx) and Xxxxxxxxxxx
Growth Fund (Growth) which is attached as Exhibit A of
Xxxxxxxx'x Registration Statement under the Securities Act
of 1933 on Form N-14 filed with the Securities and Exchange
Commission on August 20, 2003 concerning the acquisition by
Growth of substantially all of the assets of Xxxxxxxx
solely for voting shares of beneficial interest in Growth,
followed by the distribution of such shares in exchange for
all of the outstanding shares of Xxxxxxxx.
Section 368(a)(1)(C), IRC provides that, when determining
whether the exchange is solely for stock, the assumption by
Growth of a liability of Xxxxxxxx shall be disregarded.
The managements of both Growth and Xxxxxxxx have
represented to us that there is no plan or intention by any
shareholder of Xxxxxxxx who owns 5% or more of the
outstanding shares of Xxxxxxxx and, to the best of their
knowledge, there is no plan or intention on the part of the
remaining shareholders of Xxxxxxxx to redeem, sell,
exchange, or otherwise dispose of Growth shares to Growth,
other than in the ordinary course of business.
Management of each fund has further represented to us that,
as of the date of the exchange, both Growth and Xxxxxxxx
will qualify as regulated investment companies or will meet
the diversification test of Section 368(a)(2)(F)(ii), IRC,
and that a significant portion (as contemplated by
Regulation Section 1.368-1(d)(3), IRC) of Xxxxxxxx'x
existing assets will continue to be held beyond the date of
the transaction and liquidated only in the ordinary course
of business.
In our opinion, the federal tax consequences of the
transaction, if carried out in the manner outlined in the
Agreement and in accordance with the above representations,
should be as follows:
Xxxxxxxxxxx Growth Fund
Page 2
1 The transactions contemplated by the Agreement should
qualify as a tax-free "reorganization" within the
meaning of Section 368(a)(1) of the Internal Revenue
Code of 1986, as amended, and under the regulations
promulgated thereunder.
2. Growth and Xxxxxxxx should each qualify as a "party
to a reorganization" within the meaning of Section
368(b)(2).
3. No gain or loss should be recognized by the
shareholders of Xxxxxxxx upon the distribution of
shares of beneficial interest in Growth to the
shareholders of Xxxxxxxx pursuant to Section 354.
4. Under Section 361(a) no gain or loss should be
recognized by Xxxxxxxx by reason of the transfer of
its assets solely in exchange for shares of Growth.
5. Under Section 1032 no gain or loss should be
recognized by Growth by reason of the transfer of
Xxxxxxxx assets solely in exchange for shares of
Growth.
6. The stockholders of Xxxxxxxx should have the same tax
basis and holding period for the shares of beneficial
interest in Growth that they receive as they had for
the stock of Xxxxxxxx that they previously held,
pursuant to Sections 358(a) and 1223(1), respectively.
7. The securities transferred by Xxxxxxxx to Growth
should have the same tax basis and holding period in
the hands of Growth as they had for Xxxxxxxx,
pursuant to Sections 362(b) and 1223(1), respectively.
This opinion is based solely upon:
a. the representations, information, documents,
and facts that we have included or
referenced in this opinion letter;
b. our assumption (without independent
verification) that all of the representations
and all of the originals, copies, and
signatures of documents reviewed by us are
accurate, true, and authentic;
c. our assumption (without independent
verification) that there will be timely
execution and delivery of and performance as
required by the representations and documents;
d. the understanding that only the specific
Federal income tax issues and tax consequences
opined upon herein are covered by this tax
opinion, and no other federal, state, or local
taxes of any kind were considered;
e. the law, regulations, cases, rulings, and other
tax authority in effect as of the date of this
letter. If there are significant changes in or
to the foregoing tax authorities (for which we
shall have no responsibility to advise you),
such changes may result in our opinion being
rendered invalid or necessitate (upon your
request) a reconsideration of the opinion;
f. your understanding that this opinion is not
binding on the IRS or the courts and should not
be considered a representation, warranty, or
guarantee that the IRS or the courts will
concur with our opinion; and
Xxxxxxxxxxx Growth Fund
Page 3
g. your understanding that this opinion letter is
solely for your benefit, is limited to the
described transaction, and may not be relied
upon by any other person or entity.
Very truly yours,
/s/ Deloitte & Touche LLP
