Common use of Representations and warranties of Acquiring Fund Clause in Contracts

Representations and warranties of Acquiring Fund. Acquiring Fund represents and warrants to and agrees with Acquired Fund that: <![if !supportLists]>(a) <![endif]>Acquiring Fund is a series of Series Investment Fund II, a business trust duly established and validly existing under the laws of The Commonwealth of Massachusetts, and has power to own all of its properties and assets and to carry out its obligations under this Agreement. Series Investment Fund II is not required to qualify as a foreign association in any jurisdiction. Each of Series Investment Fund II and Acquiring Fund has all necessary federal, state and local authorizations to carry on its business as now being conducted and to carry out this Agreement. <![if !supportLists]>(b) <![endif]>Series Investment Fund II is registered under the Investment Company Act of 1940, as amended (the “1940 Act”), as an open-end management investment company, and such registration has not been revoked or rescinded and is in full force and effect. <![if !supportLists]>(c) <![endif]>Reserved. <![if !supportLists]>(d) <![endif]>Reserved. <![if !supportLists]>(e) <![endif]>There are no material legal, administrative or other proceedings pending or, to the knowledge of Series Investment Fund II or Acquiring Fund, threatened against Series Investment Fund II or Acquiring Fund which assert liability or may, if successfully prosecuted to their conclusion, result in liability on the part of Series Investment Fund II or Acquiring Fund. <![if !supportLists]>(f) <![endif]>Acquiring Fund has no known liabilities of a material nature, contingent or otherwise, other than liabilities incurred pursuant to this Agreement. <![if !supportLists]>(g) <![endif]>No consent, approval, authorization or order of any court or governmental authority is required for the consummation by Acquiring Fund of the transactions contemplated by this Agreement, except such as may be required under the Securities Act of 1933, as amended (the “1933 Act”), the Securities Exchange Act of 1934, as amended (the “1934 Act”), the 1940 Act, state securities or blue sky laws (which term as used herein shall include the laws of the District of Columbia and of Puerto Rico) or the Hxxx‑Sxxxx‑Rxxxxx Antitrust Improvements Act of 1976 (the “H‑S‑R Act”). <![if !supportLists]>(h) <![endif]>The definitive proxy statement of Acquired Fund filed with the Securities and Exchange Commission (the “Commission”) pursuant to Rule 14a-6(b) under the 1934 Act and relating to the approval of Acquired Fund’s shareholders referred to in Section 7(a) (the “Acquired Fund Proxy Statement”), on the date of such filing (i) will comply in all material respects with the provisions of the 1934 Act and the 1940 Act and the rules and regulations thereunder and (ii) will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and on the date of the meeting of Acquired Fund’s shareholders referred to in Section 7(a) below and on the Exchange Date, the Acquired Fund Proxy Statement will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided however, that the representations and warranties in this subsection shall apply only to statements in or omissions from the Acquired Fund Proxy Statement made in reliance upon and in conformity with information furnished by Series Investment Fund II and Acquiring Fund for use in the Acquired Fund Proxy Statement. <![if !supportLists]>(i) <![endif]>There are no material contracts outstanding to which Acquiring Fund is a party, other than as disclosed in Series Investment Fund II’s currently effective registration statement on Form N-1A. <![if !supportLists]>(j) <![endif]>Acquiring Fund has no shares of beneficial interest issued and outstanding. <![if !supportLists]>(k) <![endif]>Acquiring Fund was established by the Trustees of Series Investment Fund II in order to effect the transactions described in this Agreement. It has not yet filed its first federal income tax return and, thus, has not yet elected to be treated as a “regulated investment company” for federal income tax purposes. However, upon filing its first income tax return at the completion of its first taxable year, Acquiring Fund will elect to be a “regulated investment company” and until such time will take all steps necessary to ensure that it qualifies for taxation as a “regulated investment company” under Sections 851 and 852 of the Code. Acquiring Fund will also ensure that its assets are sufficiently diversified so that each segregated account investing all its assets in Acquiring Fund will be within the meaning of Section 817(h) of the Code and the applicable regulations thereunder. <![if !supportLists]>(l) <![endif]>Acquiring Fund has filed or will file all federal and state tax returns which, to the knowledge of Series Investment Fund II’s officers, are required to be filed by Acquiring Fund and has paid or will pay all federal and state taxes shown to be due on said returns or on any assessments received by Acquiring Fund. All tax liabilities of Acquiring Fund have been adequately provided for on its books, and to the knowledge of Acquiring Fund, no tax deficiency or liability of Acquiring Fund has been asserted, and no question with respect thereto has been raised, by the Internal Revenue Service or by any state or local tax authority for taxes in excess of those already paid. As of the Exchange Date, Acquiring Fund is not under audit by the Internal Revenue Service or by any state or local tax authority for taxes in excess of those already paid. <![if !supportLists]>(m) <![endif]>The issuance of the Merger Shares pursuant to this Agreement will be in compliance with all applicable federal securities laws. <![if !supportLists]>(n) <![endif]>The Merger Shares to be issued to Acquired Fund have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable by Acquiring Fund, and no shareholder of Acquiring Fund will have any preemptive right of subscription or purchase in respect thereof.