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

Conditions to Acquiring Fund’s obligations. The obligations of Acquiring 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]>That Acquired Fund shall have furnished to Acquiring Fund a statement of Acquired Fund’s net assets, with values determined as provided in Section 4 of this Agreement, together with a list of Investments with their respective tax costs, all as of the Valuation Time, certified on Acquired Fund’s behalf by Series Investment Fund’s President (or any Vice President) and Treasurer (or any Assistant Treasurer), and a certificate of both such officers, dated the Exchange Date, to the effect that as of the Valuation Time and as of the Exchange Date there has been no material adverse change in the financial position of Acquired Fund since December 31, 2004, other than changes in the Investments and other assets and properties since that date, changes in the market value of the Investments and other assets of Acquired Fund, changes due to net redemptions or changes due to dividends paid or losses from operations. <![if !supportLists]>(c) <![endif]>That Series Investment Fund, on behalf of Acquired Fund, shall have furnished to Acquiring Fund a statement, dated the Exchange Date, signed on behalf of Acquired Fund by Series Investment Fund’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 Acquired Fund made in this Agreement are true and correct in all material respects as if made at and as of such dates, and that Acquired 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]>(d) <![endif]>Reserved. <![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 Acquiring Fund shall have received an opinion of Ropes & Gxxx LLP, in form satisfactory to Acquiring Fund and dated the Exchange Date, to the effect that (i) Series Investment Fund 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, on behalf of Acquired 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 II, on behalf of Acquiring Fund, is a valid and binding obligation of Acquired Fund, (iii) Acquired Fund has power to sell, assign, convey, transfer and deliver the assets contemplated hereby and, upon consummation of the transactions contemplated hereby in accordance with the terms of this Agreement, Acquired Fund will have duly sold, assigned, conveyed, transferred and delivered such assets to Acquiring Fund, (iv) the execution and delivery of this Agreement did not, and the consummation of the transactions contemplated hereby will not, violate Series Investment Fund’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 or Acquired 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’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 whose responsibility it is to advise Series Investment Fund and Acquired Fund with respect to such matters, (v) no consent, approval, authorization or order of any court or governmental authority is required for the consummation by Series Investment Fund, on behalf of Acquired Fund, of the transactions contemplated hereby, 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, and (vi) such other matters as Acquiring Fund may reasonably deem necessary or desirable. <![if !supportLists]>(g) <![endif]>That Acquiring 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 Acquiring Fund or its shareholders upon receipt of the Investments transferred to Acquiring Fund pursuant to this Agreement in exchange for the Merger Shares, (iii) the basis to Acquiring Fund of the Investments will be the same as the basis of the Investments in the hands of Acquired Fund immediately prior to such exchange, (iv) Acquiring Fund’s holding periods with respect to the Investments will include the respective periods for which the Investments were held by Acquired Fund, and (v) Acquiring Fund will succeed to and take into account the items of Acquired Fund described in Section 381(c) of the Code, subject to the conditions and limitations specified in Sections 381, 382, 383 and 384 of the Code and regulations thereunder. 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 the assets of Acquired Fund to be acquired by Acquiring Fund will include no assets which Acquiring Fund, by reason of charter limitations or of investment restrictions disclosed in its current registration statement in effect on the Exchange Date, may not properly acquire. <![if !supportLists]>(i) <![endif]>Reserved. <![if !supportLists]>(j) <![endif]>That Acquiring Fund shall have received from the Commission, any relevant state securities administrator, the Federal Trade Commission (the “FTC”) and the Department of Justice (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. <![if !supportLists]>(k) <![endif]>That all proceedings taken by Acquired Fund in connection with the transactions contemplated by this Agreement and all documents incidental thereto shall be satisfactory in form and substance to Acquiring Fund and Ropes & Gxxx LLP. <![if !supportLists]>(l) <![endif]>Reserved. <![if !supportLists]>(m) <![endif]>That Acquired Fund’s custodian shall have delivered to Acquiring Fund a certificate identifying all of the assets of Acquired Fund held by such custodian as of the Valuation Time. <![if !supportLists]>(n) <![endif]>That Acquired Fund’s transfer agent shall have provided to Acquiring Fund (i) the originals or true copies of all of the records of Acquired Fund in the possession of such transfer agent as of the Exchange Date, (ii) a certificate setting forth the number of shares of Acquired Fund outstanding as of the Valuation Time, and (iii) the name and address of each holder of record of any such shares and the number of shares held of record by each such shareholder. <![if !supportLists]>(o) <![endif]>That all of the issued and outstanding shares of beneficial interest of Acquired Fund shall have been offered for sale and sold in conformity with all applicable state securities or blue sky laws and, to the extent that any audit of the records of Acquired Fund or its transfer agent by Acquiring Fund or its agents shall have revealed otherwise, either (i) Acquired Fund shall have taken all actions that in the opinion of Acquiring Fund or its counsel are necessary to remedy any prior failure on the part of Acquired Fund to have offered for sale and sold such shares in conformity with such laws or (ii) Acquired Fund shall have furnished (or caused to be furnished) surety, or deposited (or caused to be deposited) assets in escrow, for the benefit of Acquiring Fund in amounts sufficient and upon terms satisfactory, in the opinion of Acquiring Fund or its counsel, to indemnify Acquiring Fund against any expense, loss, claim, damage or liability whatsoever that may be asserted or threatened by reason of such failure on the part of Acquired Fund to have offered and sold such shares in conformity with such laws. <![if !supportLists]>(p) <![endif]>Reserved. <![if !supportLists]>(q) <![endif]>That Acquired Fund shall have executed and delivered to Acquiring Fund an instrument of transfer dated as of the Exchange Date pursuant to which Acquired Fund will assign, transfer and convey all of the assets and other property to Acquiring Fund existing at the Valuation Time in connection with the transactions contemplated by this Agreement.