Common use of Conditions to Acquired Fund’s obligations Clause in Contracts

Conditions to Acquired Fund’s obligations. The obligations of Acquired Fund hereunder shall be subject to the following conditions: <![if !supportLists]>(a) <![endif]>That this Agreement shall have been adopted and the transactions contemplated hereby shall have been approved by the affirmative vote of (i) at least a majority of the Trustees of Series Investment Fund (including a majority of those Trustees who are not “interested persons” of Series Investment Fund, as defined in Section 2(a)(19) of the 1000 Xxx); (ii) at least a majority of the Trustees of Series Investment Fund II (including a majority of those Trustees who are not “interested persons” of Series Investment Fund II, as defined in Section 2(a)(19) of the 1000 Xxx); and (iii) at least a “majority of the outstanding voting securities” of Acquired Fund (as defined in Section 2(a)(42) of the 1940 Act). <![if !supportLists]>(b) <![endif]>Reserved. <![if !supportLists]>(c) <![endif]>That Series Investment Fund II, on behalf of Acquiring Fund, shall have executed and delivered to Acquired Fund an Assumption of Liabilities dated as of the Exchange Date pursuant to which Acquiring Fund will assume all of the liabilities of Acquired Fund existing at the Valuation Time in connection with the transactions contemplated by this Agreement. <![if !supportLists]>(d) <![endif]>That Series Investment Fund II, on behalf of Acquiring Fund, shall have furnished to Acquired Fund a statement, dated the Exchange Date, signed on behalf of Acquiring Fund by Series Investment Fund II’s President (or any Vice President) and Treasurer (or any Assistant Treasurer) certifying that as of the Valuation Time and as of the Exchange Date all representations and warranties of Acquiring Fund made in this Agreement are true and correct in all material respects as if made at and as of such dates, and that Acquiring Fund has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied at or prior to each of such dates. <![if !supportLists]>(e) <![endif]>That there shall not be any material litigation pending or threatened with respect to the matters contemplated by this Agreement. <![if !supportLists]>(f) <![endif]>That Acquired Fund shall have received an opinion of Ropes & Gxxx LLP, in form satisfactory to Acquired Fund and dated the Exchange Date, to the effect that (i) Series Investment Fund II is a business trust duly established and validly existing under the laws of The Commonwealth of Massachusetts, and, to the knowledge of such counsel, is not required to qualify to do business as a foreign association in any jurisdiction except as may be required by state securities or blue sky laws, (ii) this Agreement has been duly authorized, executed, and delivered by Series Investment Fund II, on behalf of Acquiring Fund, and, assuming that the Acquired Fund Proxy Statement complies with the 1934 Act and the 1940 Act and assuming due authorization, execution and delivery of this Agreement by Series Investment Fund, on behalf of Acquired Fund, is a valid and binding obligation of Acquiring Fund, (iii) the Merger Shares to be delivered to Acquired Fund as provided for by this Agreement are duly authorized and upon such delivery will be validly issued and will be fully paid and nonassessable by Acquiring Fund and no shareholder of Acquiring Fund has any preemptive right to subscription or purchase in respect thereof, (iv) the execution and delivery of this Agreement did not, and the consummation of the transactions contemplated hereby will not, violate Series Investment Fund II’s Agreement and Declaration of Trust, as amended, or Bylaws, or any provision of any agreement known to such counsel to which Series Investment Fund II or Acquiring Fund is a party or by which it is bound, it being understood that with respect to investment restrictions as contained in Series Investment Fund II’s Agreement and Declaration of Trust, Bylaws, then current prospectus or statement of additional information, such counsel may rely upon a certificate of an officer of Series Investment Fund II whose responsibility it is to advise Series Investment Fund II and Acquiring Fund with respect to such matters, and (v) no consent, approval, authorization or order of any court or governmental authority is required for the consummation by Series Investment Fund II, on behalf of Acquiring Fund, of the transactions contemplated herein, except such as have been obtained under the 1933 Act, the 1934 Act and the 1940 Act and such as may be required under state securities or blue sky laws and the H-S-R Act. <![if !supportLists]>(g) <![endif]>That Acquired Fund shall have received an opinion of Ropes & Gxxx LLP dated the Exchange Date (which opinion would be based upon certain factual representations and subject to certain qualifications), to the effect that, on the basis of the existing provisions of the Code, current administrative rules and court decisions, for federal income tax purposes: (i) the transactions contemplated by this Agreement will constitute a reorganization within the meaning of Section 368(a) of the Code and Acquired Fund and Acquiring Fund will each be a “party to a reorganization” within the meaning of Section 368(b) of the Code, (ii) no gain or loss will be recognized by Acquired Fund upon the transfer of the Investments to Acquiring Fund and the assumption by Acquiring Fund of the liabilities of Acquired Fund, or upon the distribution of the Merger Shares by Acquired Fund to its shareholders, pursuant to this Agreement, (iii) no gain or loss will be recognized by the Acquired Fund shareholders on the exchange of their shares of Acquired Fund for Merger Shares, (iv) the aggregate tax basis of the Merger Shares an Acquired Fund shareholder receives in connection with the transaction will be the same as the aggregate tax basis of his or her Acquired Fund shares exchanged therefor, and (v) an Acquired Fund shareholder’s holding period for his or her Merger Shares will be determined by including the period for which he or she held Acquired Fund shares exchanged therefor, provided that the shareholder held Acquired Fund’s shares as a capital asset. The opinion will express no view with respect to the effect of the reorganization on any transferred asset as to which any unrealized gain or loss is required to be recognized at the end of a taxable year (or on the termination or transfer thereof) under federal income tax principles. <![if !supportLists]>(h) <![endif]>That all proceedings taken by or on behalf of Acquiring Fund in connection with the transactions contemplated by this Agreement and all documents incidental thereto shall be satisfactory in form and substance to Acquired Fund and Ropes & Gxxx LLP. <![if !supportLists]>(i) <![endif]>Reserved. <![if !supportLists]>(j) <![endif]>That Acquired Fund shall have received from the Commission, any relevant state securities administrator, the FTC and the Department such order or orders as Ropes & Gxxx LLP deems reasonably necessary or desirable under the 1933 Act, the 1934 Act, the 1940 Act, any applicable state securities or blue sky laws and the H‑S‑R Act in connection with the transactions contemplated hereby, and that all such orders shall be in full force and effect.