EXHIBIT 12
March __, 2003
Janus Investment Fund Berger Investment Portfolio Trust
100 Fillmore Street 210 University Boulevard
Denver, Colorado 80206-4928 Denver, Colorado 80206
Berger Growth Fund, Inc. Berger Large Cap Growth Fund, Inc.
210 University Boulevard 210 University Boulevard
Denver, Colorado 80206 Denver, Colorado 80206
RE: REORGANIZATIONS OF BERGER GROWTH FUNDS INTO JANUS GROWTH FUNDS
Ladies and Gentlemen:
You have requested our opinion regarding certain federal income tax
consequences of the reorganizations ("REORGANIZATIONS") by and between Janus
Investment Fund, a Massachusetts business trust (the "ACQUIRING TRUST"), on
behalf of Janus Balanced Fund, Janus Olympus Fund, Janus Growth and Income Fund,
Janus Enterprise Fund, Janus Venture Fund and Janus Global Technology Fund, each
a separate series of the Acquiring Trust (each an "ACQUIRING FUND" and,
collectively, the "ACQUIRING FUNDS") and Berger Investment Portfolio Trust, a
Delaware statutory trust (the "TARGET TRUST"), on behalf of Berger Balanced
Fund, Berger Mid Cap Growth Fund, Berger Small Company Growth Fund and Berger
Information Technology Fund, each a separate series of the Target Trust; Berger
Growth Fund, Inc., a Maryland corporation; and Berger Large Cap Growth Fund,
Inc., a Maryland corporation (such Berger corporation referred to individually
as a "TARGET COMPANY" and collectively as the "TARGET COMPANIES" and each series
of the Target Trust and each Target Company referred to herein as a "TARGET
FUND" and, collectively the "TARGET FUNDS"). The Acquiring Funds and Target
Funds are referred to herein collectively as the "FUNDS."
The Reorganizations contemplate the transfer of all the assets of each
Target Fund to its corresponding Acquiring Fund as set forth in Exhibit A
attached hereto in exchange for voting shares of beneficial interest, par value
$.01 per share, of the corresponding Acquiring Fund (the "ACQUIRING FUND
SHARES") and the assumption by each Acquiring Fund of all the liabilities of its
corresponding Target Fund. Thereafter, the Acquiring Fund Shares received by
each Target
VEDDER PRICE
Janus Investment Fund
Berger Investment Portfolio Trust
Berger Growth Fund, Inc.
Berger Large Cap Growth Fund, Inc.
March __, 2003
Page 2
Fund will be distributed to the shareholders of such Target Fund in complete
liquidation and termination or dissolution of the Target Fund. The foregoing
will be accomplished pursuant to an Agreement and Plan of Reorganization, dated
as of [December 10, 2002] (the "PLAN"), entered into by and among the Acquiring
Trust, the Target Trust and the Target Companies, on behalf of their respective
Funds.
In rendering this opinion, we have reviewed and relied upon statements
made to us by certain of your officers. We have also examined certificates of
such officers and such other agreements, documents, and corporate records that
have been made available to us and such other matters as we have deemed relevant
for purposes of this opinion. In such examination, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, the conformity to originals of all documents submitted to us as
copies and the authenticity of the originals of such latter documents.
Our opinion is based, in part, on the assumption that the
Reorganizations described herein will occur in accordance with the agreements
(including the Plan) and the facts and representations set forth or referred to
in this opinion letter, and that such facts and representations are accurate as
of the date hereof and will be accurate on the effective date of the
Reorganizations (the "EFFECTIVE TIME"). We have undertaken no independent
investigation of the accuracy of the facts, representations and assumptions set
forth or referred to herein.
For the purposes indicated above, and based upon the facts, assumptions
and representations set forth or referred to herein, including without
limitation those certain representations made to us by duly authorized officers
of the respective Acquiring Trust, Target Trust and Target Companies, on behalf
of each of the Funds in a letter dated [March ___, 2002], it is our opinion that
for federal income tax purposes:
1. The transfer by each Target Fund of all of its assets solely in
exchange for Acquiring Fund Shares of its corresponding Acquiring Fund and the
assumption by such Acquiring Fund of all the liabilities of its corresponding
Target Fund, followed by the distribution of the Acquiring Fund Shares so
received to the shareholders of such Target Fund in dissolution and complete
liquidation of such Target Fund will constitute a "reorganization" within the
meaning of Section 368(a)(1) of the Internal Revenue Code of 1986, as amended
(the "CODE"), and each such Acquiring Fund and Target Fund will each be "a party
to a reorganization," within the meaning of Section 368(b) of the Code, with
respect to its respective Reorganization.
VEDDER PRICE
Janus Investment Fund
Berger Investment Portfolio Trust
Berger Growth Fund, Inc.
Berger Large Cap Growth Fund, Inc.
March __, 2003
Page 3
2. No gain or loss will be recognized by an Acquiring Fund upon the
receipt of the assets of its corresponding Target Fund solely in exchange for
the Acquiring Fund Shares of such Acquiring Fund and the assumption by such
Acquiring Fund of all the liabilities of such Target Fund. (Section 1032(a) of
the Code).
3. No gain or loss will be recognized by a Target Fund upon the
transfer of all of its assets to its corresponding Acquiring Fund solely in
exchange for Acquiring Fund Shares of such Acquiring Fund and the assumption by
such Acquiring Fund of all the liabilities of such Target Fund or upon the
distribution of the Acquiring Fund Shares to such Target Fund shareholders in
exchange for such shareholders' shares of such Target Fund. (Sections 361(a) and
(c) and 357(a) of the Code).
4. No gain or loss will be recognized by a Target Fund's shareholders
upon the exchange of all of their Target Fund shares solely for Acquiring Fund
Shares of the corresponding Acquiring Fund pursuant to its respective
Reorganization. (Section 354(a) of the Code).
5. The aggregate tax basis of the Acquiring Fund Shares of an Acquiring
Fund received by shareholders of the corresponding Target Fund pursuant to its
respective Reorganization will be the same as the aggregate tax basis of the
shares of such Target Fund exchanged therefor. (Section 358(a)(1) of the Code).
6. The holding period of the Acquiring Fund Shares of an Acquiring Fund
received by shareholders of the corresponding Target Fund in its respective
Reorganization will include the holding period during which the shares of such
Target Fund exchanged therefor were held by such shareholder, provided such
Target Fund shares were held as capital assets at the Effective Time of its
respective Reorganization. (Section 1223(1) of the Code).
7. The tax basis of the assets of a Target Fund received by its
corresponding Acquiring Fund will be the same as the tax basis of such assets
when held by such Target Fund immediately before its respective Reorganization.
(Section 362(b) of the Code).
8. The holding period of the assets of a Target Fund received by its
corresponding Acquiring Fund will include the period during which such assets
were held by such Target Fund. (Section 1223(2) of the Code).
VEDDER PRICE
Janus Investment Fund
Berger Investment Portfolio Trust
Berger Growth Fund, Inc.
Berger Large Cap Growth Fund, Inc.
March __, 2003
Page 4
FACTS
Our opinion is based upon the above referenced representations and the
following facts and assumptions, any alteration of which could adversely affect
our conclusions.
Each of the Acquiring Funds is a separate series of the Acquiring
Trust, and each of the Target Funds is either a separate series of the Target
Trust or a Target Company. Each of the Acquiring Trust, Target Trust and Target
Companies has been registered and operated since it commenced operations as an
open-end, management investment company under the Investment Company Act of
1940. Each of the Target Funds and Acquiring Funds has qualified and will
qualify as a regulated investment company under Section 851 of the Code for each
of its taxable years (including each Target Fund's last short taxable period
ending on the Effective Time), and has distributed and will distribute all or
substantially all of its income so that the Funds and their shareholders have
been and will be taxed in accordance with Section 852 of the Code. After the
Reorganizations, the Acquiring Funds intend to continue to so qualify.
Upon satisfaction of certain terms and conditions set forth in the Plan
on or before the Effective Time, the following will occur: (a) the transfer of
all the assets of each Target Fund to its corresponding Acquiring Fund solely in
exchange for voting shares of beneficial interest of such Acquiring Fund; (b)
the assumption by each Acquiring Fund of the liabilities of its corresponding
Target Fund; and (c) the pro rata distribution of the Acquiring Fund Shares so
received by each Target Fund to its respective shareholders. The assets of each
Target Fund to be acquired by the corresponding Acquiring Fund consists of all
property, including, without limitation, all cash, securities, commodities,
interests in futures and dividends or interest receivables, owned by such Target
Fund and any deferred or prepaid expenses shown as an asset on the books of such
Target Fund.
As soon as practicable after the Effective Time, each Target Fund will
be completely liquidated and will distribute all of the Acquiring Fund Shares it
receives pro rata to its shareholders of record in exchange for such
shareholders' interests in the Target Fund. Such distribution will be
accomplished by opening accounts on the share records of the corresponding
Acquiring Fund in the names of the shareholders of the corresponding Target Fund
and transferring to those shareholder accounts the pro rata number of Acquiring
Fund Shares of such Acquiring Fund due each shareholder.
As a result of the Reorganizations, each shareholder of a Target Fund
will own Acquiring Fund Shares of its corresponding Acquiring Fund that will
have an aggregate per share net asset value immediately after the Effective Time
equal to the aggregate per share net asset value of
VEDDER PRICE
Janus Investment Fund
Berger Investment Portfolio Trust
Berger Growth Fund, Inc.
Berger Large Cap Growth Fund, Inc.
March __, 2003
Page 5
that shareholder's Target Fund shares immediately prior to the Effective Time.
Since Acquiring Fund Shares of an Acquiring Fund issued to the shareholders of
the corresponding Target Fund will be issued at net asset value in exchange for
the net assets of such Target Fund having a value equal to the aggregate per
share net asset value of those Acquiring Fund Shares so issued, the net asset
value of the Acquiring Fund Shares of each Acquiring Fund should remain
virtually unchanged as a result of its respective Reorganization.
In approving the Reorganizations, the respective Board of Trustees of
the Acquiring Trust and the Target Trust and the respective Board of Directors
of the Target Companies have identified certain benefits that are likely to
result from combining the Funds, including administrative and operating
efficiencies. Each Board also considered the possible risks and costs of
combining the Funds and determined that each of the Reorganizations is likely to
provide benefits to the shareholders of the Funds that outweigh the costs
incurred.
CONCLUSION
Based on the foregoing, it is our opinion that the transfer of all of
the assets of each Target Fund, pursuant to the Plan, in exchange for voting
shares of beneficial interest of its corresponding Acquiring Fund and the
assumption by such Acquiring Fund of such Target Fund's liabilities will qualify
as a reorganization under Section 368(a)(1) of the Code.
The opinions set forth above with respect to (i) the nonrecognition of
gain or loss to each Target Fund and Acquiring Fund, (ii) the basis and holding
period of the assets received by each Acquiring Fund, (iii) the nonrecognition
of gain or loss to each Target Fund's shareholder upon the receipt of the
Acquiring Fund Shares of the corresponding Acquiring Fund, and (iv) the basis
and holding period of the Acquiring Fund Shares received by each Target Fund
shareholder, follow as a matter of law from the opinion that the transfers under
the Plan will qualify as reorganizations under Section 368(a) of the Code.
The opinions expressed in this letter are based on the Code, the Income
Tax Regulations promulgated by the Treasury Department thereunder and judicial
authority reported as of the date hereof. We have also considered the position
of the Internal Revenue Service (the "Service") reflected in published and
private rulings. Although we are not aware of any pending changes to these
authorities that would alter our opinions, there can be no assurances that
future legislative or administrative changes, court decisions or Service
interpretations will not significantly modify the statements or opinions
expressed herein.
VEDDER PRICE
Janus Investment Fund
Berger Investment Portfolio Trust
Berger Growth Fund, Inc.
Berger Large Cap Growth Fund, Inc.
March __, 2003
Page 6
Our opinion is limited to those federal income tax issues specifically
considered herein and is addressed to and is only for the benefit of the
Acquiring Trust, Target Trust and Target Companies. We do not express any
opinion as to any other federal income tax issues, or any state, local or
foreign tax law issues, arising from the transactions contemplated in the Plan.
Although the discussion herein is based upon our best interpretation of existing
sources of law and expresses what we believe a court would properly conclude if
presented with these issues, no assurance can be given that such interpretations
would be followed if they were to become the subject of judicial or
administrative proceedings.
We consent to the filing of this opinion as an Exhibit to the
Registration Statement on Form N-14 (File No. 333-_______) relating to the
Reorganizations.
Very truly yours,
VEDDER, PRICE, KAUFMAN & KAMMHOLZ
VEDDER PRICE
Janus Investment Fund
Berger Investment Portfolio Trust
Berger Growth Fund, Inc.
Berger Large Cap Growth Fund, Inc.
March __, 2003
Page 7
EXHIBIT A
SUMMARY OF THE REORGANIZATIONS
(shareholders of each Target Fund will receive shares
of the corresponding Acquiring Fund as designated below)
<Table>
<Caption>
TARGET FUND ACQUIRING FUND
----------- --------------
Berger Balanced Fund Janus Balanced Fund
Berger Growth Fund Janus Olympus Fund
Berger Large Cap Growth Fund Janus Growth and Income Fund
Berger Mid Cap Growth Fund Janus Enterprise Fund
(Investor and Institutional Shares)
Berger Small Company Growth Fund Janus Venture Fund
(Investor and Institutional Shares)
Berger Information Technology Fund Janus Global Technology Fund
(Investor and Institutional Shares)
</Table>