EXHIBIT 12
OPINION & CONSENT
OF MCDERMOTT, WILL & EMERY
A Partnership Including Boston
Professional Corporations Chicago
600 13th Street, N.W. London
Washington, D.C. Los Angeles
20005-3096 Miami
202-756-8000 Moscow
Facsimile 202-756-8087 Orange County
http://www.mwe.com New York
Silicon Valley
Vilnius
Washington, D.C.
MCDERMOTT, WILL & EMERY
February 19, 2002
The Phoenix Edge Series Fund
101 Munson Street
Greenfield, Massachusetts 01301
Ladies and Gentlemen:
We are acting as special tax counsel to The Phoenix Edge Series Fund, a
Massachusetts business trust (the "Trust"), in connection with the
reorganization contemplated by the Form of Agreement and Plan of Reorganization
(the "Agreement") attached as Appendix A to the registration statement filed on
Form N-14 under the Securities Act of 1933 for the reorganization (the
"Registration Statement") and made as of March 18, 2002, by and between the
Trust on behalf of both the Phoenix-Engemann Capital Growth Series (the
"Surviving Fund"), a separate series of the Trust, and the Phoenix-Engemann
Nifty Fifty Series (the "Merging Fund"), another separate series of the Trust.
The reorganization (the "Reorganization") will consist of the transfer of all of
the assets of the Merging Fund to the Surviving Fund in exchange solely for
shares of the Surviving Fund (the "Surviving Fund Shares"), the assumption by
the Surviving Fund of all liabilities of the Merging Fund, and the distribution
of the Surviving Fund Shares to the shareholders of the Merging Fund in complete
liquidation of the Merging Fund as provided in the Agreement.
In connection with rendering our opinion, we have examined the Agreement,
the Registration Statement, the representation letter of the Trust dated
February 18, 2002 (the "Representation Letter"), and such other
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documents and corporate records as we have deemed necessary or appropriate
for purposes of this opinion.
In addition, we have assumed with your consent that (i) the Reorganization
will be consummated in accordance with the provisions of the Agreement and in
the manner contemplated in the Registration Statement, and none of the terms or
conditions contained therein have been or will be modified in any respect
relevant to this opinion; (ii) the statements concerning the Reorganization set
forth in the Registration Statement and the other documents referred to herein
are and, as of the effective time of the Reorganization, will be, true,
accurate, and complete in all material respects; (iii) any representation or
other statement in the Representation Letter or the other documents referred to
herein made "to the best of the knowledge" or similarly qualified is and, as of
the effective time of the Reorganization, will be, in each case, correct without
such qualification; (iv) no actions have been, or will be, taken that are
inconsistent with any representation or other statement contained in the
Agreement, Registration Statement, or Representation Letter; and (v) original
documents (including signatures) are authentic, documents submitted to us as
copies conform to the original documents, and there has been (or will be, by the
effective time of the Reorganization) due execution and delivery of all
documents where due execution and delivery are prerequisites to the
effectiveness thereof.
Other than obtaining the representations set forth in the Representation
Letter, we have not independently verified any factual matters in connection
with, or apart from, our preparation of this opinion. Accordingly, our opinion
does not take into account any matters not set forth herein that might have been
disclosed by independent verification. In the course of preparing our opinion,
nothing has come to our attention that would lead us to believe that any of the
facts, representations, or other information on which we have relied in
rendering our opinion is incorrect.
Based on the foregoing, and subject to the assumptions, exceptions,
limitations and qualifications set forth herein, it is our opinion that, for
U.S. federal income tax purposes, the Reorganization will qualify as a tax-free
reorganization described in section 368(a) of the Internal Revenue Code of 1986,
as amended (the "Code").
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Our opinion is based on the Code, Treasury Regulations, case law, and IRS
rulings as they exist on the date hereof. Our opinion represents our best legal
judgment as to the matter addressed herein, but is not binding on the Internal
Revenue Service or the courts. Accordingly, no assurance can be given that this
opinion, if contested, would be sustained by a court. Furthermore, the
authorities on which we rely are subject to change either prospectively or
retroactively, and any such change, or any variation or difference in the facts
from those on which we rely and assume as correct, as set forth above, might
affect the conclusion stated herein. Nevertheless, by rendering this opinion, we
undertake no responsibility to advise you of any changes or new developments in
U.S. federal income tax laws or the application or interpretation thereof.
This opinion has been rendered to you solely for purposes of satisfying the
requirement set forth in section 8.5 of the Agreement. This opinion letter (and
the opinion expressed herein) may not be relied upon by you in any other manner
or by any other person and may not be furnished to any other person without our
prior written approval; provided, however, that in accordance with the
requirements of Item 601(b)(23) of Regulation S-K under the Securities Act of
1933 (the "Act"), we hereby consent to the use of our name under the heading
"The Proposed Reorganization -- Federal Income Tax Consequences" in the
Registration Statement and to the filing of this opinion as an Exhibit to the
Registration Statement. In giving this consent, we do not admit that we come
within the category of persons whose consent is required under Section 7 of the
Act or the rules and regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
/s/ McDermott, Will & Emery
McDermott, Will & Emery