EX-99.e.1.
UNDERWRITING AGREEMENT
BETWEEN
ABERDEEN FUNDS
AND
ABERDEEN FUND DISTRIBUTORS, LLC
AGREEMENT, made as of the [___] day of [________], [____], by and between
Aberdeen Funds (the "Trust"), a Delaware statutory trust, and Aberdeen Fund
Distributors, LLC, a Delaware limited liability company, (the "Underwriter").
W I T N E S S E T H:
WHEREAS, the Trust is engaged in business as an open-end management
investment company, as defined in the Investment Company Act of 1940, as amended
(the "1940 Act"), and is so registered with the Securities and Exchange
Commission (the "SEC") under the provisions of that Act; and
WHEREAS, it is mutually desired that the Underwriter undertake as agent of
the Trust, the sale and distribution of shares of each of the investment
portfolios of the Trust which are listed on Schedule A to this Agreement (each a
"Fund");
NOW, THEREFORE, intending to be legally bound hereunder, the parties do
mutually agree and promise as follows:
1. Appointment as Underwriter. The Trust hereby appoints the Underwriter
its agent for the sale of the shares covered by the registration statement for
the Trust. As used in this Agreement, the "registration statement" shall refer
to the Trust's current registration on Form N-1A and shall include the
prospectus (Part A), Statement of Additional Information (Part B) and Part C,
and together the current prospectus and Statement of Additional Information
shall be referred to as the "Prospectus." The Trust understands that Underwriter
may in the future be the distributor of the shares of several investment
companies or series (together, "Companies") including Companies having
investment objectives similar to those of the Trust. The Trust agrees that
Underwriter's duties to such Companies shall not be deemed in conflict with its
duties to the Trust under this paragraph.
2. Duties of Underwriter.
(a) The Underwriter hereby accepts such appointment as distributor for
the sale of the shares and agrees that it will use its best efforts to
solicit orders for the sale of the shares and will undertake such
advertising and promotion as it believes reasonable in connection with such
solicitation. The Underwriter shall, at its own expense, finance
appropriate activities which are primarily intended to result in the sale
of the shares, including, but not limited to, advertising, compensation of
underwriters, dealers and sales personnel, the printing and mailing of
prospectuses to other than current shareholders, and the printing and
mailing of sales literature.
(b) In its capacity as Underwriter, Underwriter agrees to act in
conformity with the Prospectus and the Trust's Agreement and Declaration of
Trust (the "Declaration of Trust") and Bylaws and with instructions
received from the Trustees of the Trust and shall conform to and comply
with all applicable laws, rules and regulations, including, without
limitation, the 1940 Act, all rules and regulations promulgated by the SEC
thereunder and all rules and regulations adopted by any securities
association registered under the Securities Exchange Act of 1934, as
amended.
(c) The Underwriter may, and when requested by the Trustees or their
representatives shall, suspend its efforts to effectuate sales of shares on
behalf of the Trust at any time when in the opinion of the Underwriter or
of the Trustees no sales should be made because of market or other economic
considerations or abnormal circumstances of any kind. The Trust and its
Trustees may withdraw the offering of the shares (i) at any time with the
consent of the Underwriter, or (ii) without such consent when so required
by the provisions of any statute or of any order, rule or regulation of any
governmental body having jurisdiction. It is mutually understood and agreed
that the Underwriter does not undertake to sell all or any specific portion
of the shares.
(d) The Underwriter agrees on behalf of itself and its directors,
officers and employees to treat confidentially and as proprietary
information of the Trust all records and other information relative to the
Trust and its prior, present or potential shareholders, and not to use such
records and information for any purpose other than performance of its
responsibilities and duties hereunder, except when requested by the Trust
or when requested to divulge such information by duly constituted
authorities, after prior notification to and approval in writing by the
Trust. Such approval shall not be unreasonably withheld and may not be
withheld where the Underwriter may be exposed to civil or criminal contempt
proceedings for failure to comply.
3. Sale and Payment of Shares.
(a) The Underwriter shall have the right to purchase shares of the
Funds at the net asset value in effect at the time that orders for such
shares are received by the Trust or its authorized agent and to sell such
shares at the applicable public offering price through dealers or other
persons. The public offering price for the shares of each Fund shall equal
to the sum of (a) the net asset value per share next computed for a Fund by
the Trust and (b) any applicable sales charge, all as set forth in the
current Prospectus for the Fund. The net asset value of the shares shall be
determined in accordance with the provisions of the Trust's Declaration of
Trust and the Prospectus. The Trust shall allow the Underwriter as
compensation for its services the particular sales charge applicable to the
shares sold. The Underwriter may fix the portion of the distribution charge
to be allowed to dealers and others.
(b) The Underwriter agrees that it will deliver or cause to be
delivered to the Trust or to its authorized agent, as the Trustees may
direct, an amount equal to the net asset value of shares for which purchase
orders have been placed with and accepted by the Underwriter and shall
forward to the Trust or its authorized agent, as the Trustees may direct,
all orders for the purchase of shares with reasonable promptness after the
receipt and acceptance thereof by the Underwriter; provided, however, that
the Underwriter shall have the sole right to accept or reject all orders
for the purchase of shares and will return promptly any rejected order
together with the consideration which accompanied it.
4. Issuance of Shares. The Trust reserves the right to issue, transfer or
sell shares, which are otherwise subject to a sales charge, at net asset value
(a) in connection with the merger or consolidation of the Trust or the Fund(s)
with any other investment company or the acquisition by the Trust or the Fund(s)
of all or substantially all of the assets or of the outstanding shares of any
other investment company; (b) in connection with a pro rata distribution
directly to the holders of shares in the nature of a stock dividend or split;
(c) upon the exercise of subscription rights granted to the holders of shares on
a pro rata basis; (d) in connection with the issuance of shares pursuant to any
exchange and reinvestment privileges described in the Prospectus of a Fund; (e)
in a sale to the Trustees, employees, officers and directors of or salespersons
employed by the Underwriter and to officers, directors and employees of any
investment adviser of the Trust; and (f) otherwise in accordance with the
Prospectus of a Fund.
5. The Trust agrees as follows:
(1) to use its best efforts to maintain its registration as a
diversified open-end management investment company under the 1940
Act, and to comply with all of the provisions of that Act and of
the rules and regulations thereunder;
(2) to register its shares under the Securities Act of 1933, as
amended (the "Securities Act") and to use its best efforts to
maintain such registration;
(3) to prepare and file such amendments to the registration
statements and Prospectus and other statements or reports as may
be necessary to comply with the Securities Act, the 1940 Act, and
the rules and regulations of the SEC;
(4) to furnish the Underwriter with a sufficient number of
Prospectuses to meet the Underwriter's requirements for use in
connection with sales of shares, and that the Underwriter will
not be required to use any prospectuses of the Trust which shall
not be in form and content satisfactory to counsel for the
Underwriter; and
(5) at the request of the Underwriter, to take such steps as may be
necessary and feasible to qualify shares for sale in each state,
territory or dependency of the United States of America, in the
District of Columbia and in foreign countries, in accordance with
the laws thereof, and to renew or extend any such qualification;
provided, however, that the Trust shall not be required to
qualify shares or to maintain the qualification of shares in any
state, territory, dependency, district or country where they
shall deem such qualification disadvantageous to the Trust.
6. The Underwriter agrees as follows:
(1) that the Underwriter and its officers or directors will purchase
and keep shares only for investment purposes;
(2) that it will not purchase shares from the shareholders except as
agent for the Trust;
(3) that upon the request of the Trust or its representative it will
furnish to the Trust or such representative any information in
its possession which is pertinent to the preparation of any
Registration Statement, Prospectus or amendment thereto, or any
report required by law or regulation; and
(4) that neither the Underwriter nor any other person authorized by
it to solicit purchases of shares shall give any information or
make any representations, other than those contained in the
Registration Statement or Prospectus or in any supplemental sales
literature authorized by the Trust for use in connection with the
sale of shares.
7. Fees and Expenses. The Trust may pay a distribution fee to the
Underwriter determined in accordance with any applicable Distribution Plan
adopted by the Trustees and if required by the 1940 Act, approved by the
shareholders pursuant to Rule 12b-1 under the 1940 Act. The Underwriter will be
deemed to have performed all services required to be performed in order to be
entitled to receive its distribution fee with respect to shares of each Fund
upon the settlement of each sale of its shares taken into account in determining
such distribution fees.
The Underwriter shall pay expenses for (i) printing and distributing any
prospectus and preparing, printing and distributing any other literature used by
the Underwriter in connection with the offering of the shares for sale to the
public (except such expenses as may be incurred by the Trust in connection with
the preparation, printing and distribution of any Prospectus, report or other
communication to shareholders, to the extent that such expenses are necessarily
incurred to effect compliance by the Trust with any Federal or state law or to
enable such distribution to shareholders), and (ii) expenses of advertising in
connection with such offering. The Trust will pay or cause to be paid (i) all
fees and expenses for the issue and delivery of shares, and (ii) all auditing
expenses of the Trust.
8. Repurchase of Shares. The Trustees hereby appoint the Underwriter its
agent to repurchase shares, upon the written request of the shareholders,
accompanied by the certificate or certificates representing such shares (if
certificates for such shares have been issued by the Trust) properly endorsed
for transfer, at the net asset value in effect at the time when the sale is
made.
9. Indemnification.
(a) The Trust agrees to indemnify, defend and hold the Underwriter,
its directors, officers and employees, and any person who controls the
Underwriter within the meaning of Section 15 of the Securities Act
("Underwriter Affiliates") free and harmless from and against any and all
claims, demands, liabilities and expenses (including the cost of
investigating or defending such claims, demands or liabilities and any
counsel fees incurred in connection therewith) which the Underwriter and
the Underwriter Affiliates may incur under the Securities Act or under
common law or otherwise, arising out of or based upon any untrue statement,
or alleged untrue statement, of a material fact contained in any
registration statement or any prospectus or arising out of or based upon
any omission, or alleged omission, to state a material fact required to be
stated in either any registration statement or any prospectus or necessary
to make the statements in either thereof not misleading. Provided, however,
that the Trust's agreement to indemnify the Underwriter and the Underwriter
Affiliates shall not be deemed to cover any claims, demands, liabilities or
expenses arising out of any information or representations which were
furnished in writing to the Trust by the Underwriter, or arising out of or
based upon any omission or alleged omission to state a material fact in
connection with the giving of such information required to be stated in
such answers or necessary to make the answers not misleading; and further
provided that the Trust's agreement to indemnify Underwriter and the
Underwriter Affiliates shall not be deemed to cover any liability to the
Trust or its shareholders to which the Underwriter would otherwise be
subject by reason of willful misfeasance, bad faith or gross negligence in
the performance of its duties, or by reason of the Underwriters reckless
disregard of its obligations and duties under this Agreement.
(b) The Underwriter agrees to indemnify, defend and hold the Trust,
its several officers and Trustees and any person who controls the Trust
within the meaning of Section 15 of the Securities Act ("Trust Affiliates")
free and harmless from and against any and all claims, demands, liabilities
and expenses (including the costs of investigating or defending such
claims, demands or liabilities and any counsel fees incurred in connection
therewith) which the Trust and the Trust Affiliates may incur under the
Securities Act or under common law or otherwise, but only to the extent
that such liability or expense incurred by the Trust or the Trust
Affiliates resulting from such claims or demands, shall arise out of or be
based upon any untrue, or alleged untrue, statement of a material fact
contained in information furnished in writing by the Underwriter to the
Trust and used in the answers to any of the items of the registration
statement or in the Prospectus, or shall arise out of or be based upon any
omission, or alleged omission, to state a material fact in connection with
such information furnished in writing by the Underwriter to the Trust
required to be stated in such answers or necessary to make such information
not misleading.
10. Term, Duration and Termination. The term of this Agreement shall begin
as of the date first written above (or, if a particular Fund is not in existence
on that date, the date an amendment to Schedule A to this Agreement adding the
new Fund is executed) and, unless sooner terminated as provided herein, shall
remain in effect for a period of two (2) years from that date. Thereafter, if
not terminated, this Agreement shall continue in effect from year to year
thereafter provided such continuance shall be approved at least annually by (a)
a majority of the Trustees or by the affirmative vote or written approval of the
holders of a majority of the outstanding shares and (b) a majority of the
Trustees who are not parties to this Agreement or "Interested Persons" of any
such party, the term "interested person" having the meaning defined in Section
2(a)(19) of the 1940 Act. This Agreement is terminable without penalty, on not
less than sixty days' prior written notice, by the Trust's Board of Trustees, by
vote of a majority of the outstanding voting securities of the Trust or by the
Underwriter. This Agreement will also terminate automatically in the event of
its assignment (as such term is defined in the 1940 Act).
11. Amendment. This Agreement may not be amended or changed in any manner
except by a written agreement executed by both the Trust and the Underwriter.
12. Jurisdiction. This Agreement shall be governed by and in accordance
with the substantive laws of the State of Delaware without reference to choice
of law principles thereof and in accordance with the 1940 Act. In case of any
conflict, the 1940 Act shall control.
13. Aberdeen Funds and its Trustees. The terms "Aberdeen Funds" and the
"Trustees of Aberdeen Funds" refer respectively to the Trust created and the
Trustees, as trustees but not individually or personally, acting from time to
time under a Certificate of Trust dated as of September 27, 2007 as may be
amended from time to time, and to which reference is hereby made and a copy of
which is on file at the office of the Secretary of State of Delaware and
elsewhere as required by law, and to any and all amendments thereto so filed or
hereafter filed.
14. Fund Obligations. This Agreement is executed by the Trust with respect
to each of the Funds and the obligations hereunder are not binding upon any of
the trustees, officers or shareholders of the Trust individually but are binding
only upon the Fund to which such obligations pertain and the assets and property
of such Fund. All obligations of the Trust under this Agreement shall apply only
on a Fund-by-Fund basis, and the assets of one Fund shall not be liable for the
obligations of another Fund.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
ABERDEEN FUNDS
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
ABERDEEN FUND DISTRIBUTORS LLC
By:
Name:
Title: SVP-COO
Schedule A
Underwriting Agreement
between Aberdeen Mutual Funds and
Aberdeen Fund Distributors, LLC
Effective [______________]
Name of Fund
Aberdeen Select Equity Fund
Aberdeen Select Mid Cap Growth Fund
Aberdeen Select Small Cap Fund
Aberdeen Select Growth Fund
Aberdeen Select Worldwide Fund
Aberdeen China Opportunities Fund
Aberdeen Developing Markets Fund
Aberdeen International Equity Fund
Aberdeen Hedged Core Equity Fund
Aberdeen Market Neutral Fund
Aberdeen Equity Long-Short Fund
Aberdeen Global Financial Services Fund
Aberdeen Health Sciences Fund
Aberdeen Natural Resources Fund
Aberdeen Technology and Communications Fund
Aberdeen Global Utilities Fund
Aberdeen Optimal Allocations Fund: Growth
Aberdeen Optimal Allocations Fund: Moderate Growth
Aberdeen Optimal Allocations Fund: Moderate
Aberdeen Optimal Allocations Fund: Defensive
Aberdeen Optimal Allocations Fund: Specialty
Aberdeen Small Cap Fund
Aberdeen Small Cap Opportunities Fund
Aberdeen Small Cap Growth Fund
Aberdeen Small Cap Value Fund
Aberdeen Tax-Free Income Fund
ABERDEEN FUNDS
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
ABERDEEN FUND DISTRIBUTORS LLC
By:
Name:
Title: