Dated [●]
[Insert name of Exiting Scheme Claimant]
and
hfc Limited
DEED OF ASSIGNMENT OF RESIDUAL CLAIM
This Deed of Assignment (the “Deed”) is made on [●] between:
(1)
[Insert name of Exiting Scheme Claimant], a [insert description of entity] incorporated under the
laws of [insert description of jurisdiction of incorporation] with registered number [●] and registered
office at [●] (the “Exiting Scheme Claimant”); and
(2)
hfc Limited, an exempted company incorporated in the Cayman Islands with limited liability with
company number OG-186729, whose registered office address is c/o Ogier Fiduciary Services
(Cayman) Limited, 89 Nexus Way, Camana Bay, Cayman Islands (“hfc”)
Whereas:
(A)
The SphinX Companies were placed into voluntary liquidation by resolutions on 30 June 2006. On
28 July 2006, the Cayman Court granted orders providing for the winding-up, under the
supervision of the Cayman Court, of the Sphinx Companies (other than SMFF) and appointed
Kenneth Krys and Christopher Stride as JOLs of all companies except for SMFF. On 8 August
2006, the Cayman Court Appointed Mr Krys and Mr Stride as JOLs of SMFF pursuant to a
compulsory winding-up petition presented on 5 June 2006. On 10 November 2009, Margot
Macinnis was appointed in place of Mr Stride and Mr Krys and Ms Macinnis became the JOLs of
all the companies in the SPhinX Group.
(B)
On 10 November 2011 the Scheme was proposed at a convening hearing pursuant to Section 86
of the Companies Law for the purpose of, among other things, compromising the Liquidation
Issues and providing for various releases of specified persons.
(C)
Following the delivery to the Registrar of Companies of the relevant series of orders of the
Cayman Court sanctioning the Scheme in accordance with Clause 2.5 of the Scheme, the
Scheme became effective in respect of each Scheme Company pursuant to Section 86 of the
Companies Law on 22 November 2013.
(D)
Pursuant to Clause 9 of the Scheme, the Scheme Claimants were given the option of assigning
their Residual Claims to hfc and DB (where relevant) with effect from the First Cash Distribution
Date, in consideration for the payment of a Cash Out Settlement Amount.
(E)
The Exiting Scheme Claimant now wishes to assign to hfc its Residual Claim.
It is agreed as follows:
1
Interpretation
1.1
Unless otherwise defined in this Deed, words and expressions defined in the Scheme shall have
the same meaning wherever used in this Deed.
1.2
In this Deed any reference to:
1.2.1
(or to any specified provision of) the Scheme shall be construed as references to the
Scheme (or that provision) as in force for the time being and as amended, supplemented,
replaced or novated (in accordance with the terms of the Scheme);
1.2.2
any legislation (including subordinate legislation) shall be deemed to include the same as
amended, re-enacted, replaced or extended, and includes any subordinate legislation
issued under it;
1.2.3
a party to the Scheme or to any other document or agreement includes any assignee or
transferee recognised in accordance with the terms of the Scheme;
1.2.4
references to a person includes any natural person, and any type of entity or body of
persons, whether or not it is incorporated or has a separate legal entity and any executor,
administrator or successor in law of the person; and
1.2.5
a singular word includes the plural, and vice versa.
2
Assignment
2.1
Subject to Clause 2.2 of this Deed, the Exiting Scheme Claimant hereby assigns absolutely its
entire Residual Claim to hfc (the “Assignment”).
2.2
The Exiting Scheme Claimant undertakes that it will execute and deliver to the JOLs a notice of
the assignment effected by this Deed in the form set out in the Schedule.
2.3
Subject to the payment of the Cash Out Settlement Amount in accordance with the terms of the
Scheme, and the provisions of Clause 3 (Continuing Effect) of this Deed, the Exiting Scheme
Claimant shall cease to be a Scheme Claimant from the First Cash Distribution Date.
3
Continuing Effect
3.1
For the avoidance of doubt, the Scheme shall continue in full force and effect.
3.2
The obligations, liabilities and covenants owed or granted (as applicable) by the Exiting Scheme
Claimant shall continue in full force and effect including, without limitation, in relation to Clauses
12 (Releases) and 13 (Proceedings) of the Scheme and any person to whom the relevant
obligation, liability or covenant is owed (irrespective of whether they are party to the Scheme or
this Deed) shall be entitled to enforce this Clause 3.
4
Further Assurances
Each of the parties to this Deed agrees to perform (or procure the performance of) all further acts
and things and execute and deliver (or procure the execution and delivery of) such further
documents as may be required by law or as any party may reasonably require to effect the
Assignment and to give any party the full benefit of this Deed.
5
Invalidity
If any provision in this Deed shall be held to be illegal, invalid or unenforceable, in whole or in
part, such provision or part shall to that extent be deemed not to form part of this Deed but the
legality, validity or enforceability of the remainder of this Deed shall not be affected.
6
Counterparts
This Deed may be executed in any number of counterparts and by the parties to it on separate
counterparts, each of which shall be an original but all of which together shall constitute one and
the same instrument.
7
Governing Law and Jurisdiction
This Deed and any non-contractual obligations arising out of or in connection with it shall be
governed by and construed in accordance with the law in force from time to time in the Cayman
Islands and each of the parties to this deed hereby submits to the non-exclusive jurisdiction of the
courts of the Cayman Islands.
In witness whereof this Deed has been delivered on the date first stated above.
[SIGNED as a DEED by
hfc Limited
[Director]
[Director/Secretary]
SIGNED as a DEED by [name
of Scheme Claimant]
Director
Director/Secretary
Schedule
Notice of Assignment
[On the letterhead of Exiting Scheme Claimant]
To the Scheme Supervisors:
Mr Kenneth Krys and Ms Margot Macinnis
KRyS Global
Governors Square
Building 6, 2nd Floor
23 Lime Tree Bay Avenue
P.O. Box 31237
Grand Cayman KY1 – 1205
Cayman Islands
To the Sphinx Companies:
SphinX Ltd. (In Official Liquidation)
PlusFunds Manager Access Fund, SPC Ltd. (In Official Liquidation)
SphinX Strategy Fund Ltd. (In Official Liquidation)
SphinX Plus SPC, Ltd. (In Official Liquidation)
SphinX Managed Futures Ltd. (In Official Liquidation)
SphinX Managed Futures Fund, SPC (In Official Liquidation)
SPhinX Convertible Arbitrage Ltd. (In Official Liquidation)
SPhinX Distressed Ltd. (In Official Liquidation)
SPhinX Equity Market Neutral Ltd. (In Official Liquidation)
SPhinX Fixed Income Arbitrage Ltd. (In Official Liquidation)
SPhinX Long/Short Equity Ltd. (In Official Liquidation)
SPhinX Macro Ltd. (In Official Liquidation)
SPhinX Merger Arbitrage Ltd. (In Official Liquidation)
SPhinX Special Situations Ltd. (In Official Liquidation)
SPhinX Convertible Arbitrage Fund SPC (In Official Liquidation)
SPhinX Distressed Fund SPC (In Official Liquidation)
SPhinX Equity Market Neutral Fund SPC (In Official Liquidation)
SPhinX Fixed Income Arbitrage Fund SPC (In Official Liquidation)
SPhinX Long/Short Equity Fund SPC (In Official Liquidation)
SPhinX Macro Fund SPC (In Official Liquidation)
SPhinX Merger Arbitrage Fund SPC (In Official Liquidation)
SPhinX Special Situations Fund SPC (In Official Liquidation)
All c/o :Mr Kenneth Krys and Ms Margot Macinnis
KRyS Global
Governors Square
Building 6, 2nd Floor
23 Lime Tree Bay Avenue
P.O. Box 31237
Grand Cayman KY1 – 1205
Cayman Islands
Dear Sirs
Scheme of arrangement relating to the Sphinx Companies pursuant to section 86 of the
Companies Law (2013 Revision as amended)
Unless otherwise defined in this letter, words and expressions defined in the Scheme shall have the same
meaning wherever used in this letter.
We refer to the Scheme and the attached deed of assignment of Residual Claim dated [●] between [insert
name of Exiting Scheme Claimant] and hfc (the “Deed of Assignment”).
Pursuant to Clause 9.3 of the Scheme, we have assigned the Residual Claim to hfc in the Deed of
Assignment] (the “Assignee”).
All notices to the Assignee should be sent to Joshua Trump, Contrarian Capital Management LLC, 411
West Putnam Avenue, Suite 425, Greenwich, Connecticut 06830 USA with a copy to Sarah Dobbyn/
Allain Forget, Sinclairs, Third Floor Genesis Building, Genesis Close, PO Box 498, George Town Grand
Cayman, KY1-1106 in accordance with Clause 16.4 of the Scheme.
Yours faithfully
…………………………………
[Exiting Scheme Claimant]