EXHIBIT 99(12)(i)
FORM OF OPINION LETTER
[LETTERHEAD OF JORDEN BURT LLP]
[DATE]
Franklin Templeton Variable Insurance Products Trust
One Franklin Parkway
San Mateo, California 94403
Ladies and Gentlemen:
You have requested our opinion as to the Federal income tax consequences
of the transaction (the "Reorganization") pursuant to which the Franklin
Technology Securities Fund, a series of the Franklin Templeton Variable
Insurance Products Trust ("VIP Trust") (the "Acquired Fund") will be merged into
the Franklin Small Cap Fund, another series of the VIP Trust which has generally
similar investment objectives (the "Acquiring Fund").
This opinion is intended solely for delivery to the VIP Trust, on behalf
of the Acquired Fund, the Acquiring Fund, and their applicable shareholders.
Only the Trust, the Acquired Fund, the Acquiring Fund, and their applicable
shareholders may rely on this opinion. We specifically disclaim any obligation
to update or supplement this opinion to reflect any change in the law or
Internal Revenue Service (the "IRS") position with respect to the issues
addressed herein.
We have examined and are familiar with such documents, records and other
instruments relating to the Reorganization and the parties thereto as we have
deemed appropriate for purposes of this opinion letter, including the Plan of
Reorganization dated __________ (the "Plan") and the Registration and Proxy
Statement filed on ____________ with the Securities and Exchange Commission
under the Securities Act of 1933 on Form N-14, relating to the Reorganization
(the "Registration/Proxy Statement").
In rendering this opinion, we have assumed that the Reorganization will
be carried out pursuant to the terms of the Plan, that factual statements and
information contained in the Registration/Proxy Statement, and other documents,
records and instruments supplied to us are correct and that there will be no
material change with respect to such facts or information prior to the time of
the Reorganization. In rendering this opinion, we have also relied on the
assumptions stated below, and we have assumed that such representations and
facts are correct in all material respects as of the date hereof and will remain
correct at the Effective Time of the Reorganization.
ASSUMPTIONS
1. The VIP Trust is a business trust under Massachusetts law and an
open-end management investment company operating as a series fund under the
Investment Company Act of 1940 ("1940 Act").
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2. The Acquired Fund has been a separate regulated investment company
("RIC") under Section 851 of the Internal Revenue Code of 1986, as amended (the
"Code") since the date of its organization through the end of its last complete
taxable year and will qualify as a RIC for the taxable year ending on the date
of the Reorganization.
3. The Acquiring Fund has been a RIC within the meaning of Section
851 of the Code since the date of its organization through the end of its last
complete taxable year and will qualify as a RIC for the taxable year ending on
the date of the Reorganization.
4. The Board of Trustees of the VIP Trust, on behalf of the Acquired
Fund and the Acquiring Fund, has determined, for valid business reasons, that it
is advisable to combine the assets of the Acquired Fund into the Acquiring Fund,
and the Board of Trustees has adopted the Plan, subject to, among other things,
approval by shareholders of the Acquired Fund.
5. The shareholders of the Acquired Fund approved the Plan on
________ and the Reorganization will take place at the close of business on the
New York Stock Exchange on ________, or on such other date as is determined by
the Trust's Officers (the "Effective Time").
6. For the taxable year ending at the Effective Time, the Acquired
Fund shall calculate, declare and pay ordinary and capital gains dividends on
its Class 1 and Class 2 shares in amounts sufficient to distribute all of its
investment company taxable income and all of its capital gains to the close of
business on the Effective Time. Any cash dividends shall be automatically
reinvested in additional shares of the corresponding class of the Acquired Fund.
7. At the Effective Time, the Acquired Fund shall transfer all of its
assets to the corresponding Acquiring Fund in exchange for which the Acquiring
Fund shall simultaneously assume all of the liabilities of the Acquired Fund and
shall issue to the Acquired Fund Class 1 and Class 2 shares of the Acquiring
Fund (including any fractional share rounded to the nearest one-thousandth of a
share) equal in aggregate value, in the case of the Acquiring Fund's Class 1
shares, to the net asset value of the Acquired Fund attributable to the Acquired
Fund's Class 1 shares and, in the case of the Acquiring Fund's Class 2 shares,
the net asset value of the Acquired Fund attributable to the Acquired Fund's
Class 2 shares.
8. At the Effective Time, theAcquired Fund immediately shall
distribute to each holder of its outstanding shares the number of Class 1 or
Class 2 shares of the Acquiring Fund (including any fractional share rounded to
the nearest one-thousandth of a share) as shall have an aggregate value equal to
the aggregate value of the shares of the same class of the Acquired Fund
(including any fractional share rounded to the nearest one-thousandth of a
share) which were owned by such
Franklin Templeton Variable Insurance Products Trust
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shareholder immediately prior to the Effective Time, such values to be
determined by the net asset values per share of the appropriate class of the
Acquired Fund and the Acquiring Fund at the Effective Time, in exchange for and
in cancellation of the shareholder's shares of the Acquired Fund.
9. The distribution to the shareholders of the Acquired Fund shall be
accomplished by establishing an account on the share records of the Acquiring
Fund in the name of each registered shareholder of the Acquired Fund, and
crediting that account with a number of shares of the appropriate class of the
Acquiring Fund determined pursuant to the preceding paragraph. As a result of
these transfers, the shareholders of the Acquired Fund will cease to own shares
of the Acquired Fund and will instead own shares of Class 1 or Class 2 of the
Acquiring Fund having an aggregate net asset value equal to all Class 1 and
Class 2 shares of the Acquired Fund at the Effective Time.
10. The Acquired Fund shall terminate automatically immediately after
the Effective Time.
11. The shareholders of record of the shares of the Acquired Fund and
the Acquiring Fund are separate accounts of insurance companies, which hold such
shares as underlying investments for variable annuity or variable life insurance
contracts issued by such insurance companies. The owners of such contracts
("Contract Owners") have instructed the insurance companies, pursuant to the
terms of their contracts, to allocate a portion of the value of such contracts
to the sub-accounts of such insurance company separate accounts which invest in
the shares of the Acquired Fund or the Acquiring Fund.
OPINIONS
Based on the Code, Treasury Regulations issued thereunder, IRS Rulings
and the relevant case law, as of the date hereof, and on the facts,
representations and assumptions set forth above, and the documents, records and
other instruments we have reviewed, it is our opinion that, under current
Federal income tax law in effect as of this date:
1. The Reorganization contemplated by the Plan will not qualify as a
"tax-free "reorganization under the Internal Revenue Code of 1986, as amended.
2. The transfer of the assets of the Acquired Fund to the Acquiring
Fund in exchange for voting stock of the Acquiring Fund that is to be
distributed to the shareholders of the Acquired Fund, will be treated as a sale
of assets by the Acquired Fund and the Acquired Fund will recognize gain or loss
on each of the transferred assets in an amount equal to the difference between
(i) the fair market value of such assets, and (ii) the adjusted basis of such
assets.
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3. The taxable year of the Acquired Fund will end as of the close of
business on the day of the Reorganization.
4. The Acquired Fund will be entitled to a deduction for dividends
paid to its shareholders in an amount sufficient to offset its regulated
investment company taxable income and its capital gains and therefore will not
incur any federal income tax liability for its last complete taxable year ending
on the date of the Reorganization.
5. Under Section 1032 of the Code, no gain or loss will be recognized
by the Acquiring Fund on its receipt of assets of the Acquired Fund in exchange
for the Acquiring Fund's voting stock and assumption of the Acquired Fund's
liabilities.
6. Under Section 1012 of the Code, the basis to the Acquiring Fund of
the assets of the Acquired Fund transferred to it will be the fair market value
of such assets as of the Effective Time.
7. Because none of the special rules of Section 1223 of the Code will
apply, the holding period for assets of the Acquired Fund transferred to the
Acquiring Fund in the Reorganizations will start as of the Effective Time.
8. Each shareholder of the Acquired Fund will receive dividend income
to the extent of its share of all dividends declared and paid by the Acquired
Fund, including the dividend described in Assumption 6 that is to be declared
and paid immediately before the Effective Time.
9. Each shareholder of the Acquired Fund will also recognize gain or
loss on the receipt of shares of the voting stock of the Acquiring Fund in
exchange for shares of the Acquired Fund equal to the difference between (i) the
fair market value of the Acquiring Fund's shares, and (ii) the Acquired Fund
shareholder's adjusted basis for its shares in the Acquired Fund.
10. Under Section 1012 of the Code, the basis to each shareholder of
the Acquired Fund for the shares of the Acquiring Fund received in exchange for
its shares of the Acquired Fund will be the fair market value of the shares of
the Acquiring Fund as of the Effective Time.
11. Because none of the special rules of Section 1223 of the Code will
apply to the stock exchange pursuant to the Reorganization, the Acquired Fund
shareholder's holding period for voting stock of the Acquiring Fund will start
as of the Effective Time.
12. No gain or loss will be recognized by any Contract Owner as a
result of the Reorganization.
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We are not expressing an opinion as to any aspect of the Reorganization
other than those opinions expressly stated above.
As noted above, this opinion is based upon our analysis of the Code,
Treasury Regulations issued thereunder, IRS Rulings and case law, which we deem
relevant as of the date hereof. No assurances can be given that there will not
be a change in the existing law or that the IRS will not alter its present
views, either prospectively or retroactively, or adopt new views with regard to
any of the matters upon which we are rendering this opinion. Further, this
opinion is not binding on the IRS or any court that could ultimately determine
the taxation of the items referred to herein, nor can any assurances be given
that the IRS will not audit or question the treatment accorded to the
Reorganization on the Federal income tax returns of the VIP Trust or the
respective shareholders.
We hereby consent to the filing of this opinion as an exhibit to the
Registration/Proxy Statements on Form N-14.
Very truly yours,
Jorden Burt LLP