EXHIBIT 4
FORM OF
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION is dated as of [May 1, 2006]
(the "Agreement"), by and between Rydex Capital Partners Sphinx Fund, a Delaware
statutory trust (the "Selling Fund"), and Rydex Series Funds, a Delaware
statutory trust (the "Acquiring Trust"), on behalf of its series, the Rydex
Absolute Return Strategies Fund (the "Acquiring Fund"). The Selling Fund and the
Acquiring Fund are sometimes referred to collectively, as the "Funds" and
individually, as a "Fund."
PRELIMINARY STATEMENTS
The Selling Fund, a closed-end management investment company, and the
Acquiring Trust, an open-end management investment company, are each registered
under the Investment Company Act of 1940, as amended (the "1940 Act").
The Boards of Trustees of the Funds have determined that the
Reorganization (as defined below) is in the best interests of each Fund and that
the interests of the existing shareholders of each Fund would not be diluted as
a result of the Reorganization. Nonetheless, certain assets held by the Selling
Fund are currently the subject of a temporary restraining order ("TRO") issued
by the bankruptcy court as a result of the Refco, LLC bankruptcy proceedings.
Because the TRO impacts the liquidity, and could potentially impact the value,
of those assets, the Boards of Trustees of the Funds have determined that, to
the extent those assets remain subject to the TRO or any other legal restriction
at the Effective Time (as defined in Section 9 of this Agreement), those assets
will not be transferred to the Acquiring Fund.
In consideration of the mutual premises contained in this Agreement, the
parties hereto agree to effect the transfer of substantially all of the assets
of the Selling Fund solely in exchange for (a) the assumption by the Acquiring
Fund of certain stated liabilities of the Selling Fund and (b) shares of the
Acquiring Fund followed by the distribution, at the Effective Time, of such
shares of the Acquiring Fund to the shareholders of the Selling Fund on the
terms and conditions in this Agreement in liquidation of the Selling Fund (the
"Reorganization"). Any assets of the Selling Fund which are not transferred to
the Acquiring Fund pursuant to this Agreement shall be held in Trust by the
Selling Fund, solely for the benefit of the shareholders of the Selling Fund.
Shares of the Acquiring Fund that are given in exchange for the assets of the
Selling Fund are referred to as the "Acquiring Fund Shares," and the shares of
the Selling Fund that are held by the holders of such shares at the Effective
Time are referred to as the "Selling Fund Shares." For purposes of this
Agreement, the term "Acquiring Fund Shares" refers only to the H-Class Shares of
the Acquiring Fund.
AGREEMENTS
The parties to this Agreement covenant and agree as follows:
1. PLAN OF REORGANIZATION. At the Effective Time, the Selling Fund will
assign, deliver and otherwise transfer substantially all of its assets and good
and marketable title to those assets, free and clear of all liens, encumbrances
and adverse claims except as provided in this Agreement, and assign
the stated liabilities as set forth in a statement of assets and liabilities, to
be prepared as of the Effective Time (the "Statement of Assets and Liabilities")
to the Acquiring Fund. Any assets that are subject to legal restrictions shall
not be included in the Statement of Assets and Liabilities and shall not be
transferred to the Acquiring Fund and the value of Selling Fund Shares shall be
reduced accordingly. Any obligations of the Selling Fund to pay current or
former shareholders any tender proceeds from assets that are subject to the TRO
shall not be included in the Statement of Assets and Liabilities and shall not
be transferred to the Acquiring Fund. Any and all obligations that arise out of
any action, proceeding, arbitration, or regulatory examination or investigation,
whenever commenced, to the extent such obligations arise in connection with
assets of the Selling Fund that are subject to the TRO shall not be included in
the Statement of Assets and Liabilities and shall not be transferred to the
Acquiring Fund.
The Acquiring Fund shall acquire all the assets, and shall assume all the
liabilities, that are included in the Statement of Assets and Liabilities, in
exchange for delivery to the Selling Fund by the Acquiring Fund of a number of
its Acquiring Fund Shares (both full and fractional) equivalent in value to the
Selling Fund Shares of the Selling Fund, less the value of any assets or
liabilities of the Selling Fund that are not included in the Statement of Assets
and Liabilities, outstanding immediately prior to the Effective Time. The assets
and stated liabilities of the Selling Fund, as set forth in the Statement of
Assets and Liabilities, shall be exclusively assigned to and assumed by the
Acquiring Fund. All debts, liabilities, obligations and duties of the Selling
Fund, to the extent that they exist at or after the Effective Time and are
stated in the Statement of Assets and Liabilities, shall after the Effective
Time, attach to the Acquiring Fund and may be enforced against the Acquiring
Fund to the same extent as if the same had been incurred by the Acquiring Fund.
If the Selling Fund is unable to make delivery of any of its portfolio
securities listed in the Statement of Assets and Liabilities pursuant to this
Section to the Acquiring Fund for the reason that any of such securities
purchased by the Selling Fund have not yet been delivered to it by the Selling
Fund's broker or brokers, then in lieu of such delivery, the Selling Fund shall
deliver to the Acquiring Fund, with respect to these securities, executed copies
of an agreement of assignment and due bills executed on behalf of said broker or
brokers, together with such other documents as may be required by the Acquiring
Fund, including brokers' confirmation slips.
2. TRANSFER OF ASSETS. The assets of the Selling Fund to be acquired by
the Acquiring Fund shall include, without limitation, all cash, cash
equivalents, securities, receivables (including interest and dividends
receivable), goodwill and intangible property, and deferred or prepaid expenses
as set forth in the Statement of Assets and Liabilities, as well as any claims
or rights of action or rights to register shares under applicable securities
laws, any books or records of the Selling Fund and other property owned by the
Selling Fund at the Effective Time. The assets of the Selling Fund that are not
to be acquired by the Acquiring Fund shall be limited to those assets, if any,
that are subject to legal restriction, such as the TRO, as of the Effective Time
and, thus, are not listed in the Statement of Assets and Liabilities.
3. LIQUIDATION, DISSOLUTION AND TERMINATION OF THE SELLING FUND. At the
Effective Time, those assets that do not transfer to the Acquiring Fund will be
held in Trust by the Selling Fund for the benefit of the shareholders of the
Selling Fund. Following the Effective Time, the Selling Fund will begin to
liquidate and the Acquiring Fund Shares (both full and fractional) received by
the Selling Fund will be distributed to the shareholders of record of the
Selling Fund as of the Effective Time.
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Each Selling Fund shareholder shall also have the right to receive any dividends
or other distributions that were declared prior to the Effective Time, but
unpaid at that time, with respect to the Selling Fund Shares that are held by
such Selling Fund shareholders at the Effective Time. Each shareholder of the
Selling Fund will receive a number of Acquiring Fund Shares equal in value to
the Selling Fund Shares held by that shareholder, less the value of any assets
retained by the Selling Fund. This liquidation and distribution will be
accompanied by the establishment of an open account on the share records of the
Acquiring Fund in the name of each shareholder of record of the Selling Fund and
representing the respective number of Acquiring Fund Shares due that
shareholder. After the Effective Time, the Selling Fund shall cease its business
as an investment company and shall not engage in any business activities except
for the purposes of winding up its business and affairs, paying any outstanding
obligations, marshalling and preserving the value of any retained assets and
distributing those assets to shareholders of the Selling Fund in accordance with
the provisions of the Agreement. As soon as is reasonable and practicable after
the Effective Time, all retained assets of the Selling Fund shall be converted
to cash and distributed to the Selling Fund shareholders. Following the complete
liquidation of the Selling Fund, all issued and outstanding shares of the
Selling Fund shall then be cancelled on the books of the Selling Fund. Officers
of the Selling Fund shall make all necessary filings with the Securities and
Exchange Commission ("SEC") and other governmental entities to effectuate the
termination of the Selling Fund under the 1940 Act and Delaware law.
4. REPRESENTATIONS AND WARRANTIES OF THE ACQUIRING FUND. The Acquiring
Fund represents and warrants to the Selling Fund as follows:
(a) SHARES TO BE ISSUED UPON REORGANIZATION. The Acquiring Fund Shares to
be issued in connection with the Reorganization (i) have been duly authorized
and upon consummation of the Reorganization will be validly issued, fully paid
and non-assessable, and (ii) will be duly registered in conformity with
applicable federal and state securities laws, and no shareholder of the
Acquiring Fund shall have any option, warrant, or preemptive right of
subscription or purchase with respect to the Acquiring Fund's Shares.
(b) LIABILITIES. There are no liabilities of the Acquiring Fund, whether
or not determined or determinable, other than liabilities disclosed or provided
for in the Acquiring Fund's statement of assets and liabilities, if any, and
liabilities incurred in the ordinary course of business prior to the Effective
Time or otherwise previously disclosed to the Selling Fund, none of which has
been materially adverse to the business, assets or results of operations of the
Acquiring Fund.
(c) LITIGATION. Except as previously disclosed to the Selling Fund, there
are no claims, actions, suits or proceedings pending or, to the actual knowledge
of the Acquiring Fund, threatened which would materially adversely affect the
Acquiring Fund or its assets or business or which would prevent or hinder in any
material respect consummation of the transactions contemplated by this
Agreement.
(d) TAXES. As of the Effective Time, all federal and other tax returns and
reports of the Acquiring Fund required by law to have been filed shall have been
filed, and all other taxes shall have been paid so far as due, or provision
shall have been made for the payment of them, and to the best of the Acquiring
Fund's knowledge, no such return is currently under audit and no assessment has
been asserted with respect to any of these returns.
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(e) FEES AND EXPENSES. As of the Effective Time, there are no brokers or
finders entitled to receive any payments in connection with the transactions
provided for in this Agreement.
5. REPRESENTATIONS AND WARRANTIES OF THE SELLING FUND. The Selling Fund
represents and warrants to the Acquiring Fund as follows:
(a) MARKETABLE TITLE TO ASSETS. The Selling Fund will have, at the
Effective Time, good and marketable title to, and full right, power and
authority to sell, assign, transfer and deliver, the assets to be transferred to
the Acquiring Fund. Upon delivery and payment for these assets, the Acquiring
Fund will have good and marketable title to the assets without restriction on
the transfer of the assets free and clear of all liens, encumbrances and adverse
claims.
(b) LIABILITIES. There are no liabilities of the Selling Fund, whether or
not determined or determinable, other than liabilities disclosed or provided for
in the Selling Fund's Statement of Assets and Liabilities, and liabilities
incurred in the ordinary course of business prior to the Effective Time or
otherwise previously disclosed to the Acquiring Fund, none of which has been
materially adverse to the business, assets or results of operations of the
Selling Fund.
(c) LITIGATION. Except as previously disclosed to the Acquiring Fund,
there are no claims, actions, suits or proceedings pending or, to the knowledge
of the Selling Fund, threatened which would materially adversely affect the
Selling Fund or its assets or business or which would prevent or hinder in any
material respect consummation of the transactions contemplated by this
Agreement.
(d) TAXES. As of the Effective Time, all federal and other tax returns and
reports of the Selling Fund required by law to have been filed shall have been
filed, and all other taxes shall have been paid so far as due, or provision
shall have been made for the payment of them, and to the best of the Selling
Fund's knowledge, no such return is currently under audit and no assessment has
been asserted with respect to any of those returns.
(e) FEES AND EXPENSES. As of the Effective Time, there are no brokers or
finders entitled to receive any payments in connection with the transactions
provided for in this Agreement.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND. The
obligations of the Acquiring Fund under this Agreement shall be subject to the
following conditions:
(a) All representations and warranties of the Selling Fund contained in
this Agreement shall be true and correct in all material respects as of the date
of this Agreement and, except as they may be affected by the transactions
contemplated by this Agreement, as of the Effective Time, with the same force
and effect as if made on and as of the Effective Time.
(b) The Acquiring Trust shall have received an opinion of Morgan, Lewis &
Bockius LLP, counsel to both Funds, regarding the transaction, in a form
reasonably satisfactory to the Acquiring Trust, and dated as of the Effective
Time, to the effect that:
(1) the Selling Fund is a statutory trust duly organized, validly existing
and in good standing under the laws of the State of Delaware;
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(2) the shares of the Selling Fund issued and outstanding at the Effective
Time are legally issued, fully paid and non-assessable under the laws of the
State of Delaware by the Selling Fund;
(3) this Agreement has been duly authorized, executed and delivered by the
Selling Fund and represents a valid and binding contract of the Selling Fund,
enforceable in accordance with its terms, subject to the effect of bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and transfer, and
other similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles; provided, however, that no opinion need
be expressed with respect to provisions of this Agreement relating to
indemnification nor with respect to provisions of this Agreement intended to
limit liability for particular matters to the Selling Fund and its assets;
(4) the execution and delivery of this Agreement did not, and the
consummation of the transactions contemplated by this Agreement will not,
violate the Agreement and Declaration of Trust or Bylaws of the Selling Fund or
any material agreement known to such counsel to which the Selling Fund is a
party or by which it is bound;
(5) to the knowledge of such counsel no consent, approval, authorization,
or order of any court or governmental authority is required for the consummation
by the Selling Fund of the transactions contemplated by this Agreement, except
such as have been obtained under the Securities Act of 1933 (the "1933 Act"),
state securities laws, the 1940 Act, the rules and regulations under those
statutes and such as may be required under state securities laws, rules and
regulations; and
(6) the Selling Fund is registered as an investment company under the 1940
Act and such registration with the SEC as an investment company under the 1940
Act is in full force and effect.
Such opinion: (i) shall state that while such counsel have not verified,
and are not passing upon and do not assume responsibility for, the accuracy,
completeness, or fairness of any portion of the Form N-14 Registration Statement
relating to the Reorganization or any amendment thereof or supplement thereto,
they have generally reviewed and discussed certain information included therein
with respect to the Selling Fund with certain officers of the Selling Fund and
that in the course of such review and discussion no facts came to the attention
of such counsel which caused them to believe that, on the respective effective
or clearance dates of the Form N-14 Registration Statement, and any amendment
thereof or supplement thereto and only insofar as they relate to information
with respect to the Selling Fund, the Form N-14 Registration Statement or any
amendment thereof or supplement thereto, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading; (ii) shall
state that such counsel does not express any opinion or belief as to the
financial statements, other financial data, statistical data, or any information
relating to the Selling Fund contained or incorporated by reference in the Form
N-14 Registration Statement; and (iii) shall state that such opinion is solely
for the benefit of the Acquiring Trust and its Board of Trustees and officers.
In giving such opinion, Morgan, Lewis & Bockius LLP may rely upon
officers' certificates and certificates of public officials.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLING FUND. The
obligations of the Selling Fund under this Agreement shall be subject to the
following conditions:
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(a) All representations and warranties of the Acquiring Fund contained in
this Agreement shall be true and correct in all material respects as of the date
of this Agreement and, except as they may be affected by the transactions
contemplated by this Agreement, as of the Effective Time, with the same force
and effect as if made on and as of the Effective Time.
(b) The Selling Fund shall have received an opinion of Morgan, Lewis &
Bockius LLP, counsel to both Funds, regarding the transaction, in a form
reasonably satisfactory to the Selling Fund, and dated as of the Effective Time,
to the effect that:
(1) the Acquiring Trust is a statutory trust duly organized, validly
existing and in good standing under the laws of the State of Delaware;
(2) the shares of the Acquiring Fund issued and outstanding at the
Effective Time are legally issued, fully paid and non-assessable under the laws
of the State of Delaware by the Acquiring Trust, and the Acquiring Fund Shares
to be delivered to the Selling Fund, as provided for by this Agreement, are duly
authorized and upon delivery pursuant to the terms of this Agreement, will be
legally issued, fully paid and non-assessable under the laws of the State of
Delaware by the Acquiring Trust, and no shareholder of the Acquiring Fund has
any option, warrant or preemptive right to subscription or purchase in respect
thereof based on a review of the Acquiring Trust's Agreement and Declaration of
Trust and By-laws and otherwise to such counsel's knowledge;
(3) the Board of Trustees of the Acquiring Trust has duly authorized the
Acquiring Fund as a class of units of beneficial interest of the Acquiring Trust
pursuant to the terms of the Agreement and Declaration of Trust of the Acquiring
Trust;
(4) this Agreement has been duly authorized, executed and delivered by the
Acquiring Trust and represents a valid and binding contract of the Acquiring
Trust, enforceable in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and
transfer, and other similar laws of general applicability related to or
affecting creditors' rights and to general equity principles; provided, however,
that no opinion need be expressed with respect to provisions of this Agreement
relating to indemnification nor with respect to provisions of this Agreement
intended to limit liability for particular matters to the Acquiring Fund and its
assets;
(5) the execution and delivery of this Agreement did not, and the
consummation of the transactions contemplated by this Agreement will not,
violate the Agreement and Declaration of Trust or Bylaws of the Acquiring Trust
or any material agreement known to such counsel to which the Acquiring Trust is
a party or by which it is bound;
(6) to the knowledge of such counsel 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 have been obtained under the 1933 Act, state securities laws, the 1940
Act, the rules and regulations under those statutes and such as may be required
under state securities laws, rules and regulations; and
(7) the Acquiring Trust is registered as an investment company under the
1940 Act and such registration with the SEC as an investment company under the
1940 Act is in full force and effect.
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Such opinion: (i) shall state that while such counsel have not verified,
and are not passing upon and do not assume responsibility for, the accuracy,
completeness, or fairness of any portion of the Form N-14 Registration Statement
relating to the Reorganization or any amendment thereof or supplement thereto,
they have generally reviewed and discussed certain information included therein
with respect to the Acquiring Fund and the Acquiring Trust with certain officers
of the Acquiring Trust and that in the course of such review and discussion no
facts came to the attention of such counsel which caused them to believe that,
on the respective effective or clearance dates of the Form N-14 Registration
Statement and any amendment thereof or supplement thereto and only insofar as
they relate to information with respect to the Acquiring Trust and the Acquiring
Fund, the Form N-14 Registration Statement or any amendment thereof or
supplement thereto contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; (ii) shall state that such counsel does not
express any opinion or belief as to the financial statements, other financial
data, statistical data, or information relating to the Acquiring Trust or the
Acquiring Fund contained or incorporated by reference in the Form N-14
Registration Statement; and (iii) shall state that such opinion is solely for
the benefit of the Selling Fund and its Board of Trustees and officers.
In giving such opinion, Morgan, Lewis & Bockius LLP may rely upon
officers' certificates and certificates of public officials.
8. FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLING FUND AND THE
ACQUIRING FUND. The obligations of the Selling Fund and the Acquiring Fund to
effectuate this Agreement shall be subject to the satisfaction of each of the
following conditions as of the Effective Time:
(a) Any authority from the SEC as may be necessary to permit the parties
to carry out the transactions contemplated by this Agreement shall have been
received.
(b) The Registration Statement on Form N-1A of the Acquiring Fund shall be
effective under the 1933 Act, and, to the best knowledge of the Acquiring Fund,
no investigation or proceeding for that purpose shall have been instituted or be
pending, threatened or contemplated under the 1933 Act.
(c) The Acquiring Fund has filed all documents and paid all fees required
to permit its shares to be offered to the public in all states of the United
States, the Commonwealth of Puerto Rico and the District of Columbia (except
where such qualifications are not required) so as to permit the transfer
contemplated by this Agreement to be consummated.
(d) A vote approving this Agreement and the Reorganization contemplated by
this Agreement shall have been adopted by at least a majority of the shares of
the Selling Fund present in person or by proxy and entitled to vote.
(e) The Board of Trustees of the Acquiring Trust, at a meeting duly called
for such purpose, shall have authorized the issuance by the Acquiring Fund of
Acquiring Fund Shares at the Effective Time in exchange for the assets of the
Selling Fund pursuant to the terms and provisions of this Agreement.
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9. EFFECTIVE TIME OF THE REORGANIZATION. The exchange of the Selling
Fund's assets for corresponding Acquiring Fund Shares shall be effective at
[4:00 P.M., EASTERN TIME ON MAY 5, 2006], or at such other time and date as
fixed by the mutual consent of the parties (the "Effective Time").
10. TERMINATION. This Agreement and the transactions contemplated by this
Agreement may be terminated and abandoned with respect to the Acquiring Fund
and/or the Selling Fund, without penalty, by resolution of the Board of Trustees
of the Acquiring Trust or Selling Fund, respectively, or at the discretion of
any duly authorized officer of the Acquiring Trust or Selling Fund, at any time
prior to the Effective Time, if circumstances should develop that, in the
opinion of such Board or officer, make proceeding with the Agreement
inadvisable. In the event of any such termination, there shall be no liability
for damages on the part of the Acquiring Fund, the Selling Fund or Acquiring
Trust, or their respective Boards of Trustees or officers.
11. AMENDMENT AND WAIVER. This Agreement may be amended, modified or
supplemented in such manner as may be mutually agreed upon in writing by the
parties; pROVIDED, THAT no amendment may have the effect of changing the
provisions for determining the number or value of Acquiring Fund Shares to be
paid to the Selling Fund's shareholders under this Agreement to the detriment of
the Selling Fund's shareholders without their further approval. Furthermore,
either party may waive any breach by the other party or the failure to satisfy
any of the conditions to its obligations (this waiver must be in writing and
authorized by the President or any Vice President of the waiving party with or
without the approval of the party's shareholders).
12. INDEMNIFICATION.
(a) The Acquiring Fund shall indemnify, defend and hold harmless the
Selling Fund, its trustees, officers, employees and agents against all losses,
claims, demands, liabilities and expenses, including reasonable legal and other
expenses incurred in defending third party claims, actions, suits or
proceedings, arising from any of its representations, warranties, covenants or
agreements set forth in this Agreement.
(b) The Selling Fund, with respect to any claim asserted prior to the
Effective Time, shall indemnify, defend and hold harmless the Acquiring Fund,
its Trustees, officers, employees and agents against all losses, claims,
demands, liabilities and expenses, including reasonable legal and other expenses
incurred in defending third party claims, actions, suits or proceedings, arising
from any of its representations, warranties, covenants or agreements set forth
in this Agreement.
13. FEES AND EXPENSES. Each Fund shall be solely liable for its own
expenses incurred in connection with entering into and carrying out the
transactions contemplated by this Agreement, whether or not the transactions
contemplated hereby are consummated.
14. HEADINGS, COUNTERPARTS, ASSIGNMENT.
(a) The article and paragraph headings contained in this Agreement are for
reference purposes only and shall not effect in any way the meaning or
interpretation of this Agreement.
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(b) This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original.
(c) This Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors and assigns, but no assignment or
transfer of any rights or obligations shall be made by any party without the
written consent of the other party. Nothing in this Agreement expressed or
implied is intended nor shall be construed to confer upon or give any person,
firm or corporation (other than the parties and their respective successors and
assigns) any rights or remedies under or by reason of this Agreement.
15. ENTIRE AGREEMENT. The Acquiring Fund and Selling Fund agree that
neither party has made any representation, warranty or covenant not set forth in
this Agreement and that this Agreement constitutes the entire agreement between
the parties. The representations, warranties and covenants contained in this
Agreement or in any document delivered pursuant to this Agreement or in
connection with this Agreement shall survive the consummation of the
transactions contemplated under this Agreement.
16. FURTHER ASSURANCES. The Acquiring Fund and Selling Fund shall take
such further action as may be necessary or desirable and proper to consummate
the transactions contemplated by this Agreement.
17. BINDING NATURE OF AGREEMENT. As provided in the Selling Fund's and
Acquiring Trust's By-laws, as amended and supplemented to date, this Agreement
was authorized by the Trustees of the Selling Fund and the Acquiring Trust, on
behalf of the Acquiring Fund, as Trustees and not individually, and executed by
the undersigned officers of the Selling Fund and the Acquiring Trust, on behalf
of the Acquiring Fund, as officers and not individually. The obligations of this
Agreement are not binding upon the undersigned officers, Trustees, shareholders,
nominees or agents individually, but are binding only upon the assets and
property of the Selling Fund and Acquiring Fund. Moreover, no class or series of
the Acquiring Trust shall be liable for the obligations of any other classes or
series of the Acquiring Trust.
IN WITNESS WHEREOF, the parties have duly executed this Agreement, all as
of the date first written above.
RYDEX CAPITAL PARTNERS SPHINX FUND
By: _____________________________
Name: [Insert Name]
Title: [Insert Title]
RYDEX SERIES FUNDS
on behalf of Rydex Absolute Return
Strategies Fund
By: _____________________________
Name: [Insert Name]
Title: [Insert Title]
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