AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the Agreement) is made as
of this 26th day of January, 2016, by and between Rydex ETF Trust, a Delaware
statutory trust (the Trust), on behalf of the Xxxxxxxxxx Xxxxxxx 0000
Equal Weight ETF (the Acquired Fund), and the Trust, on behalf of the
Guggenheim S&P 500 Equal Weight ETF (the Surviving Fund and, together
with the Acquired Fund, the Funds). Security Investors, LLC
(Security Investors) joins this Agreement solely for purposes of
Sections 14(b) and 18(b). Except for the Funds, no other series of the
Trust are parties to this Agreement. The Trust has its principal place of
business at 000 Xxxx Xxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000.
WHEREAS, the Trust was organized as a statutory trust under the laws of the
State of Delaware on November 22, 2002 and is an open-end management
investment company registered under the Investment Company Act of 1940, as
amended (the 0000 Xxx)
WHEREAS, each of the Acquired Fund and the Surviving Fund is a separate
investment series of the Trust and the Acquired Fund owns securities that
generally are assets of the character in which the Surviving Fund is
permitted to invest
WHEREAS, each of the Acquired Fund and the Surviving Fund is authorized
to issue shares of beneficial interest
WHEREAS, the Funds intend this Agreement to be, and adopt it as, a plan of
reorganization within the meaning of the regulations under Section 368(a)
of the Internal Revenue Code of 1986, as amended (the Code) and
WHEREAS, the Trustees of the Trust, including a majority of Trustees that
are not interested persons, as such term is defined in section 2(a)(19)
of the 1940 Act, of the Trust have determined that the transactions
contemplated herein are in the best interests of each Fund and that the
interests of each Funds existing shareholders will not be diluted as a result
NOW, THEREFORE, in consideration of the mutual promises herein contained
and intending to be legally bound hereby, the parties hereto hereby agree
to enter into a transaction pursuant to which (i) the Acquired Fund will
transfer all of its assets to the Surviving Fund solely in exchange for
(a) the Surviving Funds assumption of all of the liabilities of the
Acquired Fund, (b) shares of beneficial interest of the Surviving
Fund (Surviving Fund Shares) of equal value (taking into account cash
in lieu of fractional Surviving Fund Shares) to the net assets of the
Acquired Fund being acquired, and (c) cash in lieu of fractional Surviving
Fund Shares, and (ii) the Acquired Fund will distribute, at the Closing
Date (as defined in Section 13 of this Agreement), the Surviving Fund
Shares and cash in lieu of fractional Surviving Fund Shares to holders of
shares of the Acquired Fund (Acquired Fund Shares), in connection
with the liquidation and termination of the Acquired Fund, all upon the
terms and conditions hereinafter set forth in this Agreement. The parties
hereto hereby covenant and agree as follows
1. Plan of Reorganization. At the Closing Date, the Acquired Fund shall
assign, deliver and otherwise transfer all of its assets and good and
marketable title thereto, and assign all of the liabilities as are set forth
in a statement of assets and liabilities, to be prepared as of the Valuation
Time (as defined in Section 5 of this Agreement) (the Statement of
Assets and Liabilities), to the Surviving Fund, free and clear of all liens,
encumbrances and adverse claims except as provided in this Agreement,
and the Surviving Fund shall acquire all assets, and shall assume all
liabilities of the Acquired Fund, and the Surviving Fund shall deliver to
the Acquired Fund a number of Surviving Fund Shares and cash in lieu of
fractional Surviving Fund Shares that in the aggregate are equivalent
in value to the Acquired Fund Shares outstanding immediately prior to the
Closing Date. Shareholders of record of the Acquired Fund at the
Closing Date shall be credited with Surviving Fund Shares and, as necessary,
cash in lieu of any outstanding fractional Surviving Fund Shares, owned
immediately prior to the Closing Date. The assets and liabilities of the
Acquired Fund shall be exclusively assigned to and assumed by the
Surviving Fund. All debts, liabilities, obligations and duties of the
Acquired Fund, to the extent that they exist at or after the Closing Date,
shall after the Closing Date attach to the Surviving Fund and may be
enforced against the Surviving Fund to the same extent as if the same
had been incurred by the Surviving Fund. The events outlined in this
Section 1 are referred to herein collectively as the Reorganization.
2. Transfer of Assets.
(a) The assets of the Acquired Fund to be acquired by the Surviving Fund
and allocated thereto shall include, without limitation, all cash, cash
equivalents, securities, receivables (including interest and dividends
receivable) 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 Acquired Fund and
other property owned by the Acquired Fund at the Closing Date.
(b) The Surviving Fund will, within a reasonable time prior to the Closing
Date, furnish the Acquired Fund with a list of the securities and
investments, if any, on the Acquired Funds list referred to in the
second sentence of this paragraph that do not conform to the Surviving
Funds investment objectives, policies, and restrictions. The Acquired Fund
will, within a reasonable period of time (not less than 30 days)
prior to the Closing Date, furnish the Surviving Fund with a list of its
portfolio securities and other investments. In the event that the Acquired
Fund holds any investments that the Surviving Fund may not hold, the Acquired
Fund, if requested by the Surviving Fund, will dispose of such investments
prior to the Closing Date. In addition, if it is determined that the
Acquired Fund and the Surviving Fund portfolios, when aggregated, would
contain investments exceeding certain percentage limitations imposed upon
the Surviving Fund with respect to such investments, the Acquired Fund, if
requested by the Surviving Fund, will dispose of a sufficient amount of
such investments as may be necessary to avoid violating such limitations
as of the Closing Date. Notwithstanding the foregoing, nothing herein will
require the Acquired Fund to dispose of any investments or securities if, in
the reasonable judgment of the Acquired Fund, such disposition would either
violate the Acquired Funds fiduciary duty to its shareholders or adversely
affect the tax-free nature of the Reorganization (including the customary
representations to be made by the Acquired Fund with respect
to the opinion described below).
(c) The Acquired Fund shall direct The Bank of New York Mellon, as
custodian for the Acquired Fund (the Custodian), to deliver, at or prior
to the Closing Date, a certificate of an authorized officer stating
that: (i) assets have been delivered in proper form to the Surviving Fund
at the Closing Date, and (ii) all necessary taxes in connection with the
delivery of the assets, including all applicable foreign, federal and state
stock transfer stamps, if any, have been paid or provision for payment
has been made. The Acquired Funds portfolio investments represented by a
certificate or other written instrument shall be transferred and delivered
by the Acquired Fund as of the Closing Date for the account of the
Surviving Fund duly endorsed in proper form for transfer in such condition
as to constitute good delivery thereof. The Custodian shall deliver prior
to or as of the Closing Date by book entry, in accordance with the
customary practices of any securities depository, as defined in Rule 17f-4
under the 1940 Act, in which the Acquired Funds assets are deposited,
the Acquired Funds assets deposited with such depositories. The cash
to be transferred by the Acquired Fund shall be delivered by wire transfer
of federal funds prior to or as of the Closing Date.
(d) The Acquired Fund shall direct The Bank of New York Mellon, in its
capacity as the Trusts transfer agent (the Transfer Agent), on behalf
of the Acquired Fund, to deliver prior to or as of the Closing Date a
certificate of an authorized officer stating that its records contain the
names and addresses of the holders of the Acquired Fund Shares and the
number and percentage ownership of outstanding shares of each class
owned by each shareholder immediately prior to the Closing Date. The
Surviving Fund shall issue and deliver a confirmation evidencing the
Surviving Fund Shares and cash in lieu of fractional Surviving Fund Shares
to be credited at the Closing Date to the Secretary of the Acquired Fund,
or provide evidence that the Surviving Fund Shares and cash in lieu of
fractional Surviving Fund Shares have been credited to the Acquired Fund
account on the books of the Surviving Fund. No later than the Closing Date,
each party shall deliver to the other such xxxx of sale, checks, assignments,
share certificates, if any, receipts or other documents as such other party
or its counsel may reasonably request.
(e) Notwithstanding anything to the contrary herein fractional
Surviving Fund Shares will not be issued to the holders of Acquired
Fund Shares. If the calculation of the pro rata distribution amount of
Surviving Fund Shares to any holder of Acquired Fund Shares results in
fractional Surviving Fund Shares, such holder of Acquired Fund Shares
will receive an amount in cash equal to the net asset value of the
fractional Surviving Fund Shares at the Closing. All issued and outstanding
Acquired Fund Shares, and certificates representing such Acquired
Fund Shares, if any, will simultaneously be cancelled on the books of the
Acquired Fund. The Surviving Fund will not issue certificates representing
Surviving Fund shares.
3.Calculations.
(a) The number of Surviving Fund Shares to be issued and amount of
cash in lieu of fractional Surviving Fund Shares to be distributed in
exchange for the Acquired Funds assets pursuant to Section 1 hereof shall
be determined by multiplying the outstanding shares of the Acquired Fund
by the ratio computed by dividing the net asset value per share of the
Acquired Fund by the net asset value per share of the Surviving Fund on
the Valuation Date, determined in accordance with Section 3(b). Shareholders
of record of the Acquired Fund at the Closing Date shall be credited with
Surviving Fund Shares and cash in lieu of any fractional Surviving Fund
Shares held. Any cash in lieu of any fractional Surviving Fund Shares owed
to an Acquired Fund shareholder will be calculated in accordance
with Section 1(e).
(b) The net asset value per share of the Surviving Fund shall be the net
asset value per share computed as of the time at which the Surviving Funds
net asset value is calculated at the Valuation Time, in accordance with the
pricing policies and procedures adopted by the Trust as described in the
then current prospectus and statement of additional information of the Funds
under the Securities Act of 0000 (xxx 0000 Xxx).
4. Valuation of Assets. The value of the assets of the Acquired Fund shall
be the value of such assets computed as of the time at which the Acquired
Funds net asset value is calculated at the Valuation Time. The net asset
value of the assets of the Acquired Fund to be transferred to the Surviving
Fund shall be computed by the Acquired Fund. In determining the value of
the securities transferred by the Acquired Fund to the Surviving Fund, each
security shall be priced in accordance with the pricing policies and
procedures adopted by the Board of Trustees of the Trust. For such purposes,
price quotations and the security characteristics relating to establishing
such quotations shall be determined by the Acquired Fund, provided that such
determination shall be subject to the approval of the Surviving Fund. The
Acquired Fund and the Surviving Fund agree to use all commercially reasonable
efforts to resolve, prior to the Valuation Time, any material
pricing differences.
5. Valuation Time. The valuation time shall be 4:00 p.m., Eastern Time,
on January 26, 2016, or such earlier or later date and time as may be
mutually agreed in writing by an authorized officer of the Funds
(the Valuation Time). Notwithstanding anything herein to the contrary,
in the event that at the Valuation Time, (a) the New York Stock Exchange
shall be closed to trading or trading thereon shall be restricted, or
(b) trading or the reporting of trading on such exchange or elsewhere
shall be disrupted so that, in the judgment of the Trust, accurate appraisal
of the value of the net assets of the Acquired Fund is impracticable, the
Valuation Time shall be postponed until the second business day after the
day when trading shall have been fully resumed without restriction or
disruption, reporting shall have been restored and accurate appraisal of the
value of the net assets of the Acquired Fund is practicable.
6. Liquidation of the Acquired Fund and Cancellation of Shares. At the
Closing Date, the Acquired Fund will liquidate and the Surviving Fund Shares
and cash in lieu of any fractional Surviving Fund Shares received by the
Acquired Fund will be distributed to the shareholders of record of the
Acquired Fund as of the Closing Date in exchange for their Acquired Fund
Shares and in complete liquidation of the Acquired Fund. Such liquidation
and distribution will be accompanied by the establishment of an open account
on the share records of the Surviving Fund in the name of each shareholder
of the Acquired Fund that represents the respective number of Surviving Fund
Shares and amount of cash in lieu of any fractional Surviving Fund Shares due
such shareholder. All of the issued and outstanding shares of the Acquired
Fund shall be cancelled on the books of the Trust at the Closing Date and
shall thereafter represent only the right to receive Surviving Fund Shares
and cash in lieu of any fractional Surviving Fund Shares. The Acquired
Funds transfer books shall be closed permanently. The Trust also shall take
any and all other steps as shall be necessary and proper to effect a complete
termination of the Acquired Fund.
7. Representations and Warranties of the Surviving Fund. The Surviving Fund
represents and warrants to the Acquired Fund as follows:
(a) The Surviving Fund has been duly established as a separate
investment series of the Trust, which is a statutory trust duly organized
and validly existing under the laws of the State of Delaware.
(b) The Trust is registered as an investment company classified as a
management company of the open end type, and its registration with the
Securities and Exchange Commission (the Commission) as an investment
company under the 1940 Act is in full force and effect.
(c) The shares of the Surviving Fund have been duly established and
represent a fractional undivided interest in the Surviving Fund. The issued
and outstanding shares of the Surviving Fund are duly authorized,
validly issued, fully paid and non-assessable. There are no outstanding
options, warrants or other rights of any kind to acquire from the Trust any
shares or equity interests of the Surviving Fund or securities convertible
into or exchangeable for, or which otherwise confer on the holder thereof
any right to acquire, any such additional shares, nor is the Trust committed
to issue any share appreciation or similar rights or options, warrants,
rights or securities in connection with the Surviving Fund. The Surviving
Fund Shares to be issued and delivered to the Acquired Fund, for the account
of the Acquired Funds shareholders, pursuant to the terms of this Agreement
will, at the Closing Date, have been duly authorized and, when so issued
and delivered, will be duly and validly issued Surviving Fund Shares, and
will be fully paid and non-assessable.
(d) The execution, delivery and performance of this Agreement by the
Trust, on behalf of the Surviving Fund, and the consummation of the
transactions contemplated herein have been duly and validly authorized
by the Trusts Board of Trustees and no other proceedings by the Surviving
Fund are necessary to authorize this Agreement and the transactions
contemplated hereby. This Agreement has been duly and validly executed
and delivered by the Trust, on behalf of the Surviving Fund, and assuming
due authorization, execution and delivery by the Trust, on behalf of the
Acquired Fund, is a legal, valid and binding obligation of the Trust, as
it relates to the Surviving Fund, enforceable in accordance with its terms
subject as to enforcement, to bankruptcy, insolvency, reorganization,
moratorium, and other laws relating to or affecting creditors rights and
to general equity principles. The Surviving Fund is not a party to or
obligated under any charter, by-law, indenture or contract provision or
any other commitment or obligation, or subject to any order or decree, which
would be violated by its executing and carrying out this Agreement.
(e) The audited financial statements of the Surviving Fund as of
October 31, 2015 are in accordance with generally accepted accounting
principles consistently applied, and such statements (copies of which have
been furnished to the Acquired Fund) fairly reflect the financial condition
of the Surviving Fund as of such date, and there are no known contingent
liabilities of the Surviving Fund as of such date not disclosed therein.
(f) Since October 31, 2015, there has not been any material adverse change
in the Surviving Funds financial condition, assets, liabilities, or
business other than changes occurring in the ordinary course of business, or
any incurrence by the Surviving Fund of indebtedness maturing more than one
year from the date such indebtedness was incurred, except as otherwise
disclosed to and accepted by the Acquired Fund. For purposes of this
paragraph (f), a decline in the net asset value of the Surviving Fund shall
not constitute a material adverse change.
(g) The current prospectus and statement of additional information of the
Surviving Fund conform in all material respects to the applicable requirements
of the 1933 Act and the 1940 Act and the rules and regulations of the
Commission thereunder and do not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(h) Except as otherwise disclosed in writing and accepted by the
Acquired Fund, no litigation, administrative proceeding or investigation
of or before any court or governmental body is presently pending or to its
knowledge threatened against the Surviving Fund or any of its properties
or assets, which, if adversely determined, would materially and adversely
affect its financial condition and the conduct of its business or the
ability of the Surviving Fund to carry out the transactions contemplated
by this Agreement. The Surviving Fund knows of no facts that might form the
basis for the institution of such proceedings and is not a party to or
subject to the provisions of any order, decree, or judgment of any court
or governmental body that materially and adversely affects its business or its
ability to consummate the transactions contemplated herein.
(i) Except for contracts and agreements disclosed to the Acquired Fund,
under which no default exists, the Surviving Fund is not a party to or
subject to any material contract, debt instrument, plan, lease, franchise,
license or permit of any kind or nature whatsoever with respect to the
Surviving Fund.
(j) As of the Closing Date, all Federal and other tax returns, information
returns and other tax-related reports of the Surviving Fund required by law
to have been filed by such date (including extensions) 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 thereof, and to the best of the
Surviving Funds knowledge, no such return is currently under audit by the
Internal Revenue Service or any state or local tax authority, and no
assessment has been asserted with respect to any of such returns.
(k) For each taxable year of its operation, the Surviving Fund has met
the requirements of Subchapter M of the Code for qualification as a regulated
investment company and has elected to be treated as such, and has been
eligible to and has computed its federal income tax under Section 852 of
the Code. The Surviving Fund currently qualifies, and shall continue to
qualify, as a regulated investment company under the Code.
(l) The Surviving Fund agrees to use all reasonable efforts to obtain any
necessary approvals and authorizations required by the 1933 Act, the
Securities Exchange Act of 0000 (xxx 0000 Xxx), the 1940 Act, and such
of the state Blue Sky or securities laws as it may deem appropriate in order
to continue its operations after the Closing Date.
(m) The information statement and prospectus and statement of additional
information (collectively, the Information Statement/Prospectus) to be
included in the Surviving Funds registration statement on Form N-14 (the
Registration Statement) and filed in connection with this Agreement, and
the documents incorporated therein by reference and any amendment or
supplement thereto insofar as they relate to the Surviving Fund, each
comply or will comply in all material respects with the applicable
requirements of the 1933 Act, 1934 Act and the 1940 Act and the applicable
rules and regulations of the Commission thereunder on the effective date of
such Registration Statement. Each of the Information Statement/Prospectus,
Registration Statement and the documents incorporated therein by reference
and any amendment or supplement thereto, insofar as it relates to the
Surviving Fund, does not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
materially misleading on the effective date of such Registration Statement;
provided, however, that the Surviving Fund makes no representations or
warranties as to the information contained in the Information
Statement/Prospectus, Registration Statement and the documents incorporated
therein by reference and any amendment or supplement thereto in reliance
upon and in conformity with information relating to the Acquired Fund and
furnished by the Acquired Fund to the Surviving Fund specifically for use
in connection with the Information Statement/Prospectus, Registration
Statement and the documents incorporated therein by reference and any
amendment or supplement thereto.
8. Representations and Warranties of the Acquired Fund. The Acquired Fund
represents and warrants to the Surviving Fund as follows:
(a) The Acquired Fund has been duly established as a separate investment
series of the Trust, which is a statutory trust duly organized and validly
existing under the laws of the State of Delaware.
(b) The Trust is registered as an investment company classified as a
management company of the open end type, and its registration with the
Commission as an investment company under the 1940 Act is in full
force and effect.
(c) Shares of the Acquired Fund have been duly established and represent
a fractional undivided interest in the Acquired Fund. The issued and
outstanding shares of the Acquired Fund are, and at the Closing Date will
be, duly authorized, validly issued, fully paid and nonassessable. All of
the issued and outstanding shares of the Acquired Fund will, at the time
of the Closing Date, be held by the persons and in the amounts set forth
in the records of the Transfer Agent as provided in Section 2(d). There
are no outstanding options, warrants or other rights of any kind to acquire
from the Trust any shares of any class or equity interests of the Acquired
Fund or securities convertible into or exchangeable for, or which otherwise
confer on the holder thereof any right to acquire, any such additional
shares, nor is the Trust committed to issue any share appreciation or
similar rights or options, warrants, rights or securities in connection
with the Acquired Fund.
(d) The audited financial statements of the Acquired Fund as of
October 31, 2015, are in accordance with generally accepted accounting
principles consistently applied, and such statements (copies of which
have been furnished to the Surviving Fund) fairly reflect the financial
condition of the Acquired Fund as of such date, and there are no known
contingent liabilities of the Acquired Fund as of such date not
disclosed therein.
(e) Since October 31, 2015, there has not been any material adverse change
in the Acquired Funds financial condition, assets, liabilities, or business
other than changes occurring in the ordinary course of business, or any
incurrence by the Acquired Fund of indebtedness maturing more than one
year from the date such indebtedness was incurred, except as otherwise
disclosed to and accepted by the Surviving Fund. For purposes of this
paragraph (e), a decline in the net asset value of the Acquired Fund shall
not constitute a material adverse change.
(f) The Acquired Fund will have, at the Closing Date, good and marketable
title to, and full right, power and authority to sell, assign, transfer and
deliver, the assets to be transferred to the Surviving Fund pursuant to
Section 1. Upon delivery and payment for such assets, the Surviving Fund
will have good and marketable title to such assets without restriction on the
transfer thereof free and clear of all liens, encumbrances and adverse claims
other than as disclosed to the Surviving Fund and accepted by the
Surviving Fund.
(g) The execution, delivery and performance of this Agreement by the Trust,
on behalf of the Acquired Fund, and the consummation of the transactions
contemplated herein have been duly and validly authorized by the Trusts
Board of Trustees and no other proceedings by the Acquired Fund are
necessary to authorize this Agreement and the transactions contemplated hereby.
This Agreement has been duly and validly executed and delivered by the Trust,
on behalf of the Acquired Fund, and assuming due authorization, execution and
delivery by the Trust, on behalf of the Surviving Fund, is a legal, valid and
binding obligation of the Trust, as it relates to the Acquired Fund,
enforceable in accordance with its terms subject as to enforcement, to
bankruptcy, insolvency, reorganization, moratorium, and other laws relating
to or affecting creditors rights and to general equity principles. The
Acquired Fund is not a party to or obligated under any charter, by-law,
indenture or contract provision or any other commitment or obligation, or
subject to any order or decree, which would be violated by its executing and
carrying out this Agreement.
(h) The current prospectus and statement of additional information of the
Acquired Fund conform in all material respects to the applicable requirements
of the 1933 Act and the 1940 Act and the rules and regulations of the
Commission thereunder and do not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(i) Except as otherwise disclosed in writing and accepted by the Surviving
Fund, no litigation, administrative proceeding or investigation of or before
any court or governmental body is presently pending or to its knowledge
threatened against the Acquired Fund or any of its properties or assets,
which, if adversely determined, would materially and adversely affect its
financial condition and the conduct of its business or the ability of the
Acquired Fund to carry out the transactions contemplated by this Agreement.
The Acquired Fund knows of no facts that might form the basis for the
institution of such proceedings and is not a party to or subject to the
provisions of any order, decree, or judgment of any court or governmental
body that materially and adversely affects its business or its ability to
consummate the transactions contemplated herein.
(j) Except for contracts and agreements disclosed to the Surviving Fund,
under which no default exists, the Acquired Fund is not a party to or subject
to any material contract, debt instrument, plan, lease, franchise, license
or permit of any kind or nature whatsoever with respect to the
Acquired Fund.
(k) As of the Closing Date, all Federal and other tax returns, information
returns and other tax-related reports of the Acquired Fund required by law
to have been filed by such date (including extensions) 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 thereof, and to the best of the Acquired
Funds knowledge, no such return is currently under audit by the Internal
Revenue Service or any state or local tax authority, and no assessment has
been asserted with respect to any of such returns.
(l) For each taxable year of its operation, the Acquired Fund has met the
requirements of Subchapter M of the Code for qualification as a regulated
investment company and has elected to be treated as such, and has been
eligible to and has computed its federal income tax under Section 852 of
the Code. The Acquired Fund currently qualifies, and shall continue to
qualify, as a regulated investment company under the Code.
(m) The Information Statement/Prospectus to be included in the Registration
Statement and filed in connection with this Agreement, and the documents
incorporated therein by reference and any amendment or supplement thereto
insofar as they relate to the Acquired Fund, each comply or will comply in
all material respects with the applicable requirements of the 1933 Act,
1934 Act and the 1940 Act and the applicable rules and regulations of the
Commission thereunder on the effective date of such Registration Statement.
Each of the Information Statement/Prospectus, Registration Statement and the
documents incorporated therein by reference and any amendment or supplement
thereto, insofar as it relates to the Acquired Fund, does not contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not materially misleading on the effective date
of such Registration Statement; provided, however, that the Acquired Fund
makes no representations or warranties as to the information contained in
the Information Statement/Prospectus, Registration Statement and the
documents incorporated therein by reference and any amendment or supplement
thereto in reliance upon and in conformity with information relating to the
Surviving Fund and furnished by the Surviving Fund to the Acquired Fund
specifically for use in connection with the Information Statement/Prospectus,
Registration Statement and the documents incorporated therein by reference
and any amendment or supplement thereto.
9. Covenants of the Surviving Fund and the Acquired Fund.
(a) The Surviving Fund and the Acquired Fund each will operate its
business in the ordinary course between the date hereof and the Closing Date,
it being understood that such ordinary course of business will include
customary dividends and distributions.
(b) The Acquired Fund will assist the Surviving Fund in obtaining such
information as the Surviving Fund reasonably requests concerning the
beneficial ownership of the Acquired Fund shares.
(c) Subject to the provisions of this Agreement, the Surviving Fund and
the Acquired Fund will each take, or cause to be taken, all action, and
do or cause to be done, all things reasonably necessary, proper or advisable
to consummate and make effective the transactions contemplated by this
Agreement, including any actions required to be taken after the Closing Date.
(d) As promptly as practicable, but in any case within sixty days after the
Closing Date, the Acquired Fund shall furnish the Surviving Fund, in such
form as is reasonably satisfactory to the Surviving Fund, a statement of the
earnings and profits of the Acquired Fund for federal income tax purposes
that will be carried over by the Surviving Fund as a result of Section 381
of the Code, and certified by the Acquired Funds President, Vice
President or Chief Financial Officer.
(e) On or before the Closing Date, the Acquired Fund shall declare and
pay a dividend or dividends which, together with all previous such
dividends, shall have the effect of distributing to its shareholders all of
the Acquired Funds investment company taxable income (computed without
regard to any deduction for dividends paid), if any, plus the excess, if
any, of its interest income excludible from gross income under Section 103(a)
of the Code over its deductions disallowed under Sections 265 and 171(a)(2)
of the Code for all taxable periods or years ending on or before the
Closing Date, and all of its net capital gains realized (after reduction
for any capital loss carry forward), if any, in all taxable periods or years
ending on or before the Closing Date.
10. Conditions Precedent to Obligations of the Surviving Fund. The
obligations of the Surviving Fund to complete the transactions provided
for herein shall be subject, at its election, to the performance by the
Acquired Fund of all the obligations to be performed by it hereunder on or
before the Closing Date and, in addition thereto, the following conditions:
(a) All representations and warranties of the Acquired Fund contained in
this Agreement shall be true and correct in all material respects as of the
date hereof and, except as they may be affected by the transactions
contemplated by this Agreement, as of the Closing Date, with the same force
and effect as if made on and as of the Closing Date. On the Closing Date,
the Surviving Fund shall have received a certificate from the President or
Vice President of the Acquired Fund, dated as of such date, certifying on
behalf of the Acquired Fund that as of such date that the conditions set
forth in this clause (a) have been met.
(b) The Surviving Fund shall have received an opinion of Xxxxxx,
Xxxxx & Xxxxxxx LLP, dated as of the Closing Date, in a form reasonably
satisfactory to the Surviving Fund, covering the following points:
(i) The Acquired Fund is a separate investment series of the Trust,
which is duly organized and validly existing under the laws of the State
of Delaware and has the corporate power to own all of its properties and
assets and, to the knowledge of such counsel, to carry on its business as
presently conducted.
(ii) The Trust is registered as an investment company under the 1940 Act,
and, to such counsels knowledge, such registration with the Commission as an
investment company under the 1940 Act is in full force and effect.
(iii) This Agreement has been duly authorized, executed and delivered by the
Acquired Fund and, assuming due authorization, execution, and delivery of
this Agreement by the Surviving Fund, is a valid and binding obligation of
the Acquired Fund enforceable against the Acquired Fund in accordance with
its terms, subject as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance and other laws relating
to or affecting creditors rights generally and to general equity principles.
(iv) The execution and delivery of the Agreement did not, and the consummation
of the transactions contemplated in the Agreement will not, conflict with or
result in a material breach of the terms or provisions of, or constitute a
material default under, the then-current Agreement and Declaration of Trust
or By-Laws of the Acquired Fund, or, to the knowledge of such counsel
(without any independent investigation), any material agreement or instrument
to which the Acquired Fund is a party or by which any properties belonging
to the Acquired Fund may be bound.
(v) To the knowledge of such counsel, no consent, approval, authorization or
order of any court or governmental authority of the United States or the
State of Delaware is required for consummation by the Acquired Fund of the
transactions contemplated herein, except such as have been obtained under the
1933 Act, 1934 Act and the 1940 Act, and as may be required under state
securities laws or where the failure to obtain any such consent, approval,
order or authorization would not have a material adverse effect on the
operations of the Acquired Fund or the consummation of the transactions
contemplated by this Agreement.
(vi) To the knowledge of such counsel, no litigation or administrative
proceeding or investigation of or before any court or governmental body is
presently pending or threatened as to the Acquired Fund or any of its
properties or assets and the Acquired Fund is not a party to nor subject
to the provisions of any order, decree or judgment of any court or
governmental body, which materially and adversely affects its business
other than as previously disclosed in the Registration Statement.
(vii) Assuming that a consideration therefor of not less than the net asset
value thereof has been paid, and assuming that such shares were issued in
accordance with the terms of the Acquired Funds registration statement on
Form N-1A, or any amendment or supplement thereto, in effect at the time of
such issuance, all issued and outstanding shares of the Acquired Fund are
legally issued and fully paid and non-assessable.
Such opinion may contain such assumptions and limitations as shall be in
the opinion of such counsel appropriate to render the opinions expressed
therein. In addition, such counsel shall be entitled to state that they have
relied upon officers certificates and certificates of public officials in
rendering their opinion.
(c) The Acquired Fund shall have delivered to the Surviving Fund at the
Closing Date the Acquired Funds Statement of Assets and Liabilities,
prepared in accordance with generally accepted accounting principles
consistently applied, together with a certificate of the Chief Financial
Officer of the Acquired Fund as to the aggregate asset value of the
Acquired Funds portfolio securities.
(d) On the Closing Date, the Acquired Fund shall have performed and
complied in all material respects with each of its agreements and covenants
required by this Agreement to be performed or complied with by the Acquired
Fund prior to or at the Closing Date and the Surviving Fund shall have
received a certificate from the President or Vice President of the Acquired
Fund, dated as of such date, certifying on behalf of the Acquired Fund
that the conditions set forth in this clause (d) have been and continue
to be, satisfied.
11. Conditions Precedent to Obligations of the Acquired Fund. The obligations
of the Acquired Fund to consummate the transactions provided for herein
shall be subject, at its election, to the performance by the Surviving Fund
of all the obligations to be performed by it hereunder on or before the
Closing Date, and, in addition thereto, the following further conditions:
(a) All representations and warranties of the Surviving Fund contained in this
Agreement shall be true and correct in all material respects as of the date
hereof and, except as they may be affected by the transactions contemplated
by this Agreement, as of the Closing Date, with the same force and effect
as if made on and as of the Closing Date. On the Closing Date, the Acquired
Fund shall have received a certificate from the President or Vice President
of the Surviving Fund, dated as of such date, certifying on behalf of
Surviving Fund that as of such date that the conditions set forth in this
clause (a) have been met.
(b)The Acquired Fund shall have received an opinion of Xxxxxx,
Xxxxx & Bockius LLP, dated as of the Closing Date, in a form reasonably
satisfactory to the Acquired Fund, covering the following points:
(i) The Surviving Fund is a separate investment series of the Trust,
which is duly organized and validly existing under the laws of the State of
Delaware and has the corporate power to own all of its properties and
assets and, to the knowledge of such counsel, to carry on its business as
presently conducted.
(ii) The Trust is registered as an investment company under the 1940 Act,
and, to such counsels knowledge, such registration with the Commission
as an investment company under the 1940 Act is in full force and effect.
(iii) This Agreement has been duly authorized, executed and delivered by
the Surviving Fund and, assuming due authorization, execution, and delivery
of this Agreement by the Acquired Fund, is a valid and binding obligation
of the Surviving Fund enforceable against the Surviving Fund in accordance
with its terms, subject as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance and other laws relating
to or affecting creditors rights generally and to general equity principles.
(iv) The execution and delivery of the Agreement did not, and the
consummation of the transactions contemplated in the Agreement will not,
conflict with or result in a material breach of the terms or provisions of,
or constitute a material default under, the then-current Agreement and
Declaration of Trust or By-Laws of the Surviving Fund, or, to the knowledge
of such counsel (without any independent investigation), any material
agreement or instrument to which the Surviving Fund is a party or by
which any properties belonging to the Surviving Fund may be bound.
(v) To the knowledge of such counsel, no consent, approval, authorization or
order of any court or governmental authority of the United States or the
State of Delaware is required for consummation by the Surviving Fund of
the transactions contemplated herein, except such as have been obtained under
the 1933 Act, 1934 Act and the 1940 Act, and as may be required under state
securities laws or where the failure to obtain any such consent, approval,
order or authorization would not have a material adverse effect on the
operations of the Surviving Fund or the consummation of the transactions
contemplated by this Agreement.
(vi) To the knowledge of such counsel, no litigation or administrative
proceeding or investigation of or before any court or governmental body
is presently pending or threatened as to the Surviving Fund or any of its
properties or assets and the Surviving Fund is not a party to nor subject to
the provisions of any order, decree or judgment of any court or governmental
body, which materially and adversely affects its business other than as
previously disclosed in the Registration Statement.
(vii) Assuming that a consideration therefor of not less than the net
asset value thereof has been paid, the Surviving Fund Shares to be issued
and delivered to the Acquired Fund on behalf of the Acquired Fund
shareholders as provided by this Agreement are duly authorized and upon
such delivery will be legally issued and outstanding and fully paid and
nonassessable, and no shareholder of the Surviving Fund has any statutory
preemptive rights in respect thereof.
(viii) The Registration Statement, to the knowledge of such counsel, has
been declared effective by the Commission and no stop order under the
1933 Act pertaining thereto has been issued.
Such opinion may contain such assumptions and limitations as shall be in
the opinion of such counsel appropriate to render the opinions expressed
therein. In addition, such counsel shall be entitled to state that they have
relied upon officers certificates and certificates of public officials
in rendering their opinion.
(c) On the Closing Date, the Surviving Fund shall have performed and
complied in all material respects with each of its agreements and covenants
required by this Agreement to be performed or complied with by the Surviving
Fund prior to or at the Closing Date and the Acquired Fund shall have
received a certificate from the President or Vice President of the Surviving
Fund, dated as of such date, certifying on behalf of the Surviving Fund that
the conditions set forth in this clause (c) have been, and
continue to be, satisfied.
12. Further Conditions Precedent to Obligations of the Acquired Fund and
the Surviving Fund. If any of the conditions set forth below do not exist on
or before the Closing Date with respect to the Funds, the other party to
this Agreement shall, at its option, not be required to consummate the
transactions contemplated by this Agreement.
(a) The Trusts Board of Trustees, on behalf of each of the Acquired Fund
and Surviving Fund, shall have approved this Agreement.
(b) On the Closing Date, the Commission shall not have issued an
unfavorable report under Section 25(b) of the 1940 Act, nor instituted any
proceeding seeking to enjoin the consummation of the transactions
contemplated by this Agreement under Section 25(c) of the 1940 Act and
no action, suit or other proceeding shall be threatened or pending before
any court or governmental agency in which it is sought to restrain or
prohibit, or obtain damages or other relief in connection with, this
Agreement or the transactions contemplated herein.
(c) All required consents of other parties and all other consents, orders,
and permits of federal, state and local regulatory authorities (including
those of the Commission and of state Blue Sky securities authorities,
including any necessary no action positions of and exemptive orders from
such federal and state authorities) to permit consummation of the
transactions contemplated hereby shall have been obtained, except where
failure to obtain any such consent, order, or permit would not involve a
risk of a material adverse effect on the assets or properties of the
Surviving Fund or the Acquired Fund, provided that either party hereto may
for itself waive any of such conditions.
(d) The Registration Statement shall have become effective under the
1933 Act, and no stop orders suspending the effectiveness of the Registration
Statement shall have been issued and, to the best knowledge of the parties
hereto, no investigation or proceeding for that purpose shall have been
instituted or be pending, threatened or contemplated under the 1933 Act.
(e) The Funds shall have received a favorable opinion of Xxxxxx,
Xxxxx & Xxxxxxx LLP addressed to the Surviving Fund and the Acquired Fund
substantially to the effect that with respect to the Acquired Fund and the
Surviving Fund for Federal income tax purposes:
(i) The Reorganization will constitute a tax-free reorganization within the
meaning of Section 368(a) of the Code, and the Acquired Fund and the
Surviving Fund will each be a party to the reorganization within the
meaning of Section 368(b) of the Code.
(ii) No gain or loss will be recognized by the Acquired Fund upon the
transfer of all of its assets to the Surviving Fund solely in exchange for
Surviving Fund Shares and the assumption by the Surviving Fund of all of the
liabilities of the Acquired Fund or upon the distribution of Surviving Fund
Shares to shareholders of the Acquired Fund.
(iii) No gain or loss will be recognized by the Surviving Fund upon the
receipt of the assets of the Acquired Fund solely in exchange for Surviving
Fund Shares and the assumption by the Surviving Fund of the liabilities of
the Acquired Fund.
(iv) The tax basis of the assets of the Acquired Fund received by the
Surviving Fund will be the same as the tax basis of such assets to the
Acquired Fund immediately prior to the exchange, increased by the amount
of gain (or decreased by the amount of loss), if any, recognized by the
Acquired Fund upon the exchange.
(v) The holding period of the assets of the Acquired Fund received by the
Surviving Fund will include the period during which such assets were held
by the Acquired Fund.
(vi) No gain or loss will be recognized by the shareholders of the Acquired
Fund upon the exchange of their shares of the Acquired Fund for Surviving
Fund Shares (except with respect to cash received in lieu of fractional
shares).
(vii) The aggregate tax basis of Surviving Fund Shares received by each
shareholder of the Acquired Fund will be the same as the aggregate tax
basis of the Acquired Fund shares exchanged immediately prior to the
Reorganization.
(viii) The holding period of the Surviving Fund Shares received by the
shareholders of the Acquired Fund will include the holding period of the
Acquired Fund shares surrendered in exchange therefor, provided that the
Acquired Fund shares were held as a capital asset as of the Closing Date of
the Reorganization.
(ix) The Surviving Fund will succeed to and take into account, as of the date
of the transfer (as defined in Section 1.381(b)-1(b) of the Treasury
Regulations), the items of the Acquired Fund described in Section 381(c)
of the Code, subject to the conditions and limitations specified in
Sections 381(b) and (c), 382, 383 and 384 of the Code.
No opinion will be expressed as to the effect of the Reorganization on the
Acquired Fund or the Surviving Fund with respect to (A) any asset as to
which any gain or loss may be recognized with respect to contracts subject to
Section 1256 of the Code, (B) any gain that may be recognized on the transfer
of stock in a passive foreign investment company as defined in
Section 1297(a) of the Code and (C) any other gain or loss that may be
required to be recognized (i) as a result of the closing of the Acquired
Fund taxable year or (ii) upon the transfer of an asset regardless of whether
such transfer would otherwise be a non-recognition transaction under the
Code. In addition, no opinion will be expressed as to the effect of the
Reorganization on any Acquired Fund shareholder that is required to recognize
unrealized gains and losses for U.S. federal income tax purposes under a
xxxx-to-market system of accounting.
Such opinion shall be based on customary assumptions, limitations and such
representations as Xxxxxx, Xxxxx & Xxxxxxx LLP may reasonably request,
and the Acquired Fund and Surviving Fund will cooperate to make and certify
the accuracy of such representations. Such opinion may contain such
assumptions and limitations as shall be in the opinion of such counsel
appropriate to render the opinions expressed therein. Notwithstanding
anything herein to the contrary, neither the Surviving Fund nor the Acquired
Fund may waive the conditions set forth in this Section 12(e).
13. Closing Date of the Reorganization. The exchange of the Acquired
Funds assets for the Surviving Fund Shares shall occur after the close of
business on January 26, 2016 and complete prior to the open of business on
January 27, 2016, or at such other time and date as fixed by the mutual
consent of the parties (the Closing Date).
14. Termination.
(a) This Agreement may be terminated by the mutual agreement of the
Surviving Fund and the Acquired Fund. In addition, either the Surviving
Fund or the Acquired Fund may at its option terminate this Agreement
at or prior to the Closing Date:
(i) because of a material breach by the other party of any representation,
warranty, covenant or agreement contained herein to be performed at
or prior to the Closing Date;
(ii) because of a condition herein expressed to be precedent to the
obligations of the terminating party which has not been met and
which reasonably appears will not or cannot be met;
(iii) by resolution of the Trusts Board of Trustees if circumstances
should develop that, in the good faith opinion of the Board, make
proceeding with the Agreement not in the best interests of either of the
Acquired Funds or Surviving Funds shareholders;
(b) In the event of any such termination, in the absence of willful default,
there shall be no liability for damages on the part of the Acquired Fund,
the Surviving Fund, the Trust, or their Trustees or officers, to the other
party. In such event, Security Investors shall bear the expenses incurred
by the Acquired Fund and the Surviving Fund incidental to the preparation
and carrying out of this Agreement as provided in Section 18.
15. Amendment. This Agreement may be amended, modified or supplemented in
such manner as may be mutually agreed upon in writing by the
authorized officers of the Funds; provided, however, that no such amendment
may have the effect of changing the provisions for determining the number
of the Surviving Fund Shares to be issued to the Acquired Fund shareholders
under this Agreement to the detriment of such Acquired Fund shareholders.
16. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without giving effect
to the conflicts of laws provisions thereof.
17. Notices. Any notice, report, statement or demand required or permitted
by any provision of this Agreement shall be in writing and shall be given
by prepaid telegraph, telecopy, certified mail or overnight express
courier addressed as follows:
Acquired Fund:
Xxx X. Xxx
Vice President and Secretary
Rydex ETF Trust
000 Xxxx Xxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Surviving Fund:
Xxx X. Xxx
Vice President and Secretary
Rydex ETF Trust
000 Xxxx Xxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
18. Fees and Expenses.
(a) Each of the Surviving Fund and the Acquired Fund represents and
warrants to the other that there are no brokers or finders entitled to
receive any payments in connection with the transactions provided for herein.
(b) Except as otherwise provided for herein, all expenses that are solely
and directly related to the Reorganization contemplated by this Agreement
will be borne and paid by Security Investors. Such expenses include, without
limitation, to the extent solely and directly related to the Reorganization
contemplated by this Agreement: (i) expenses incurred in connection with the
entering into and the carrying out of the provisions of this Agreement;
(ii) expenses associated with the preparation and filing of the Registration
Statement under the 1933 Act covering the Surviving Fund Shares to be issued
pursuant to the provisions of this Agreement; (iii) registration or
qualification fees and expenses of preparing and filing such forms as are
necessary under applicable state securities laws to qualify the Surviving
Fund Shares to be issued in connection herewith in each state in which the
Acquired Funds shareholders are resident as of the date of the mailing
of the Information Statement/Prospectus to such shareholders; (iv) postage;
(v) printing; (vi) accounting fees; and (vii) legal fees. Security Investors
agrees that all such fees and expenses so borne and paid, shall be paid
directly by Security Investors to the relevant providers of services or other
payees in accordance with the principles set forth in the Internal Revenue
Service Rev. Ruling 73-54, 1973-1 C.B. 187. Fees and expenses not
incurred directly in connection with the consummation of the transactions
contemplated by this Agreement will be borne by the party incurring such
fees and expenses. Notwithstanding the foregoing, expenses will in any
event be paid by the party directly incurring such expenses if and to the
extent that the payment by the other party of such expenses would result
in the disqualification of the Acquired Fund or the Surviving Fund, as the
case may be, as a regulated investment company within the meaning of
Section 851 of the Code or would prevent the Reorganization from qualifying
as a reorganization under Section 368(a) of the Code. Acquired Fund
shareholders will pay their respective expenses, if any, incurred in
connection with the transactions contemplated by this Agreement. Neither
the Acquired Fund nor the Surviving Fund will pay the Surviving Fund
shareholders expenses, if any. In the event this Agreement is terminated
at or prior to the Closing Date in accordance with Section 14 hereto,
Security Investors will bear the costs incurred by the Acquired Fund
under this Section 18(b).
19. Headings, Counterparts, Assignment.
(a) The section headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation
of this Agreement.
(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 hereto and their respective successors and assigns, but no assignment
or transfer hereof or of any rights or obligations hereunder shall be
made by any party without the written consent of the other party.
Nothing herein expressed or implied is intended or shall be construed to
confer upon or give any person, firm or corporation other than the parties
hereto and their respective successors and assigns any rights or
remedies under or by reason of this Agreement.
(d) The Surviving Fund and Acquired Fund agree that neither party
has made any representation, warranty or covenant not set forth herein and
that this Agreement constitutes the entire agreement between the parties.
The representations, warranties and covenants contained herein or in any
document delivered pursuant hereto or in connection herewith shall not
survive the consummation of the transactions contemplated hereunder.
IN WITNESS WHEREOF, the parties have duly executed this Agreement, all as
of the date first written above.
RYDEX ETF TRUST, ON BEHALF OF
THE XXXXXXXXXX XXXXXXX 1000 EQUAL WEIGHT ETF
By:
Name:
Title:
RYDEX ETF TRUST, ON BEHALF OF
THE S&P 500 EQUAL WEIGHT ETF
By:
Name:
Title:
SOLELY FOR PURPOSES OF SECTIONS 14(B) AND 18(B), SECURITY INVESTORS, LLC
By:
Name:
Title:
