Jorden Burt
1025 Thomas Jefferson Street, N.W. 777 Brickell Avenue
Suite 400 East Suite 500
Washington, D.C. Miami, FL 33131-2803
(202) 965-8100 (305)371-2600
Fax: (202) 965-8104 Fax: (305)372-9928
175 Powder Forest Drive
Suite 201
Simsbury, CT 06089-9658
Form of Opinion of Counsel (860)392-5000
[Date] Fax: (860)392-5058
Maxim Series Fund, Inc.
8515 East Orchard Road
Greenwood Village, Colorado 80111
Ladies and Gentlemen:
We have acted as counsel for Maxim Series Fund, Inc. (the "Fund"), a
corporation organized under the laws of Maryland, in connection with the
preparation of the Fund's registration statement on Form N-14 (the "Registration
Statement") filed under the Securities Act of 1933, as amended (the "1933 Act")
with the Securities and Exchange Commission (the "Commission"). The Registration
Statement relates to the registration under the 1933 Act of shares of capital
stock, par value $0.10 per share, of each series of the Fund set forth below
(each, an "Acquiring Portfolio") to be issued in connection with the proposed
acquisition by the Acquiring Portfolios of substantially all of the property,
assets and goodwill of each series of Orchard Series Fund, a statutory trust
organized under the laws of Delaware, set forth opposite the Acquiring
Portfolio's name (each, an "Acquired Fund"), pursuant to an Agreement and Plan
of Reorganization (the "Plan") between the Fund and Orchard Series Fund
(collectively, the "Shares").
Acquiring Portfolio Acquired Fund
Maxim S&P 500 Index(R)Portfolio Orchard DJIASM Index Fund
Maxim S&P 500 Index(R)Portfolio Orchard Nasdaq-Index 100(R)Fund
Maxim S&P 500 Index(R)Portfolio Orchard S&P 500 Index(R)Fund
Maxim Index 600 Portfolio Orchard Index 600 Fund
We have examined the originals or copies, certified or otherwise
identified to our satisfaction, of the Articles of Incorporation and By-Laws of
the Fund, each as amended to date; Articles Supplementary of the Fund
establishing the series of the Fund; the resolutions adopted by the Board of
Directors of the Fund relating to the Plan, the authorization and issuance of
the Shares pursuant to the Plan, the filing of the Registration Statement and
any amendments or supplements thereto and related matters; a draft of the Plan;
certificates and such other documents, instruments and records as we have deemed
necessary or appropriate as a basis to render this opinion.
We have assumed the legal capacity of natural persons, the genuineness
of all signatures, the authenticity of all documents submitted to us as
originals, the conformity to original documents of all documents submitted to us
as certified, conformed, photostatic, or other copies and the authenticity of
the originals of such latter documents and the correctness of all certificates
and statements of fact made to us or contained in those documents. As to any
facts material to such opinion which were not independently established, we have
relied on statements or representations of officers and other representatives of
the Fund and others.
Members of our firm are admitted to the practice of law in the State of
Florida and the District of Columbia, and we do not express any opinion as to
the laws of any other jurisdiction other than matters relating to the Maryland
General Corporation Law, as amended, including matters relating to corporations
organized in Maryland.
Based upon and subject to the foregoing, and assuming approval of the
Plan by shareholders of the Acquired Funds at a meeting anticipated to be held
on March 29, 2004, we are of the opinion that the Shares of the Acquiring
Portfolios to be issued pursuant to the Registration Statement, when issued in
accordance with the Registration Statement, the Plan and the Fund's Articles and
By-Laws, subject to compliance with the 1933 Act, the Investment Company Act of
1940, as amended, and applicable state laws regulating the offer and sale of
securities, will be legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement and to all references to our name
therein. In giving this consent, we do not hereby admit that we are in the
category of persons whose consent is required under Section 7 of the 1933 Act or
the rules and regulations of the Commission.
Very truly yours,
JORDEN BURT LLP
WDC #118202v1