SUB-ITEM 77Q1(g): Copies of any merger or consolidation
agreement, and other documents relevant to the information
sought in sub-item 77M above.
In connection with the Registrant's response to sub-item 77M
regarding the reorganization of the Aberdeen Global Natural
Resources Fund (the "Acquired Fund") into the Aberdeen
Global Equity Fund (the "Acquiring Fund"), attached hereto is
a copy of the Agreement and Plan of Reorganization among
the Acquired Fund and Acquiring Fund, and Aberdeen Asset
Management Inc.
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF
REORGANIZATION (the "Agreement") is made as of this
3th day of November, 2016, by Aberdeen Funds, a Delaware
statutory trust (the "Aberdeen Trust"), on behalf of its series,
the Aberdeen Global Natural Resources Fund (the "Acquired
Fund") and the Aberdeen Global Equity Fund (the "Acquiring
Fund") (the Acquired Fund and the Acquiring Fund,
collectively, the "Funds," and each, a "Fund"), and, solely for
purposes of paragraphs 4.2, 5.6 and 8.2 hereof, Aberdeen
Asset Management Inc., a corporation organized under the
laws of the State of Delaware ("AAMI").
This Agreement is intended to be and is adopted as a
plan of reorganization within the meaning of Section 368(a) of
the Internal Revenue Code of 1986, as amended (the
"Code"). The reorganization of the Acquired Fund (the
"Reorganization") will consist of the transfer of all of the
assets of the Acquired Fund in exchange solely for Class A,
Class C, Class R, Institutional Class and Institutional Service
Class shares (collectively, the "Shares") of the Acquiring Fund
and the assumption by the Acquiring Fund of all of the
liabilities of the Acquired Fund, and the distribution, on or
after the Closing Date hereinafter referred to, of Shares of the
Acquiring Fund ("Acquiring Fund Shares") to the
shareholders of the Acquired Fund in liquidation of the
Acquired Fund as provided herein, all upon the terms and
conditions hereinafter set forth in this Agreement.
As the Funds are each series of the Aberdeen Trust,
all parties to this Agreement acknowledge and accept that each
Fund does not have a Board of Trustees or officers separate
from the other series of the Aberdeen Trust. Accordingly, all
representations, warranties, covenants and/or other obligations
of any kind made by each Fund in this Agreement are
expressly understood by all parties to this Agreement as being
made by the Trustees or officers of the Aberdeen Trust, as
applicable, in their respective capacities as Trustees or officers
(and not in their individual capacities) for, and on behalf of,
each Fund.
WHEREAS, the Board of Trustees of the Aberdeen
Trust, on behalf of the Acquired Fund, has determined that the
exchange of all of the assets of the Acquired Fund for
Acquiring Fund Shares and the assumption of the liabilities of
the Acquired Fund by the Acquiring Fund is in the best
interests of the Acquired Fund and that the interests of the
existing shareholders of the Acquired Fund would not be
diluted as a result of this transaction; and
WHEREAS, the Board of Trustees of the Aberdeen
Trust, on behalf of the Acquiring Fund, has determined that
the exchange of all of the assets of the Acquired Fund for
Acquiring Fund Shares and the assumption of the liabilities of
the Acquired Fund by the Acquiring Fund is in the best
interests of the Acquiring Fund's shareholders and that the
interests of the existing shareholders of the Acquiring Fund
would not be diluted as a result of this transaction.
NOW, THEREFORE, in consideration of the
premises and of the covenants and agreements hereinafter set
forth, the parties hereto covenant and agree as follows:
1.Transfer of assets of the Acquired
Fund in exchange for Acquiring Fund Shares and assumption
of the Acquired Fund's liabilities and liquidation of the
Acquired Fund.
1.1.Subject to the terms and conditions
herein set forth and on the basis of the representations and
warranties contained herein, the Acquired Fund agrees to
transfer its assets as set forth in paragraph 1.2 to the Acquiring
Fund, and the Acquiring Fund agrees in exchange
therefor: (i) to deliver to the Acquired Fund the number of
each corresponding class of Acquiring Fund Shares, including
fractional Acquiring Fund Shares, determined by dividing the
value of the Acquired Fund's net assets, attributable to each
share class of the Acquired Fund (as set forth below),
computed in the manner and as of the time and date set forth
in paragraph 2.1, by the net asset value of one Acquiring Fund
Share of the corresponding class (as set forth below); and
(ii) to assume the liabilities of the Acquired Fund, as set forth
in paragraph 1.3. Such transactions shall take place at the
closing provided for in paragraph 3.1 (the "Closing").
The classes of shares of the
Acquiring Fund correspond to the classes of shares of the
Acquired Fund as follows: Class A shares of the Acquiring
Fund correspond to Class A shares of the Acquired Fund;
Class C shares of the Acquiring Fund correspond to Class C
shares of the Acquired Fund; Class R shares of the Acquiring
Fund correspond to Class R shares of the Acquired Fund;
Institutional Class shares of the Acquiring Fund correspond to
Institutional Class shares of the Acquired Fund; and
Institutional Service Class shares of the Acquiring Fund
correspond to Institutional Service Class shares of the
Acquired Fund.
1.2.The assets of the Acquired Fund to
be acquired by the Acquiring Fund shall consist of all property
including, without limitation, all cash, securities and dividend
or interest receivables that are owned by or owed to the
Acquired Fund and any deferred or prepaid expenses shown as
an asset on the books of the Acquired Fund on the Closing
date provided in paragraph 3.1 (the "Closing Date").
1.3.The Acquired Fund will endeavor
to discharge all of the known liabilities and obligations of the
Acquired Fund prior to the Closing Date, other than those
liabilities and obligations which would otherwise be
discharged at a later date in the ordinary course of
business. The Acquiring Fund shall assume all liabilities,
expenses, costs, charges and reserves, whether absolute or
contingent, known or unknown, accrued or unaccrued,
including those liabilities reflected on unaudited statements of
assets and liabilities of the Acquired Fund and the Acquiring
Fund prepared by State Street Bank and Trust Company
("State Street"), the accounting agent of each Fund, as of the
Valuation Date (as defined in paragraph 2.1), in accordance
with generally accepted accounting principles consistently
applied from the prior audited period. The Acquiring Fund
shall also assume any liabilities, expenses, costs or charges
incurred by or on behalf of the Acquired Fund specifically
arising from or relating to the operations and/or transactions of
the Acquired Fund prior to and including the Closing Date but
which are not reflected on the above-mentioned statement of
assets and liabilities, including any liabilities, expenses, costs
or charges arising under paragraph 5.4 hereof.
0.0.Xx soon on or after the Closing
Date as is conveniently practicable (the "Liquidation Date"),
the Acquired Fund will liquidate and distribute pro rata to the
Acquired Fund's shareholders of record determined as of the
close of business on the Closing Date (the "Fund
Shareholders") the Acquiring Fund Shares it receives pursuant
to paragraph 1.1. Such liquidation and distribution will be
accomplished by the transfer of the Acquiring Fund Shares
then credited to the account of the Acquired Fund on the
books of the Acquiring Fund to open accounts on the share
records of the Acquiring Fund in the name of the Acquired
Fund's shareholders representing the respective pro rata
number of each class of Acquiring Fund Shares due Acquired
Fund shareholders holding the corresponding class of the
Acquired Fund's shares. All issued and outstanding shares of
the Acquired Fund will simultaneously be canceled on the
books of the Acquired Fund, although any share certificates
representing interests in the Acquired Fund will represent a
number of Acquiring Fund Shares after the Closing Date as
determined in accordance with paragraph 2.2. The Acquiring
Fund shall not issue certificates representing the Acquiring
Fund Shares in connection with such exchange.
1.5.Ownership of Acquiring Fund
Shares will be shown on the books of the Acquiring Fund's
transfer agent. Shares of the Acquiring Fund will be issued in
the manner described in the Acquiring Fund's current
prospectus and statement of additional information.
1.6.Any transfer taxes payable upon
issuance of the Acquiring Fund Shares in a name other than
the registered holder of the Acquired Fund Shares on the
books of the Acquired Fund as of that time shall, as a
condition of such issuance and transfer, be paid by the person
to whom such Acquiring Fund Shares are to be issued and
transferred.
1.7.Any reporting responsibility of the
Acquired Fund is and shall remain the responsibility of the
Acquired Fund up to and including the Closing Date and such
later date on which the Acquired Fund is terminated.
2. Valuation
2.1.The value of the Acquired Fund's
assets to be acquired hereunder shall be the value of such
assets computed as of the close of regular trading on The New
York Stock Exchange, Inc. (the "NYSE") on the Closing Date
(such time and date being hereinafter called the "Valuation
Date"), using the valuation procedures set forth in the
Acquired Fund's then current prospectus or statement of
additional information.
2.2.The number of Shares of the
Acquiring Fund to be issued (including fractional shares, if
any) in exchange for shares of beneficial interest of the
Acquired Fund shall be determined by dividing the value of
the net assets of the Acquired Fund attributable to each class
of its shares of beneficial interest determined using the same
valuation procedures referred to in paragraph 2.1 by the net
asset value per Share of the corresponding class of the
Acquiring Fund computed as of the close of regular trading on
the NYSE on the Closing Date, using the valuation procedures
set forth in the Acquiring Fund's then current prospectus or
statement of additional information.
2.3.All computations of value with
respect to the Acquiring Fund and the Acquired Fund shall be
made by State Street in accordance with its regular practice as
pricing agent for the Acquiring Fund.
3.Closing and Closing Date
3.1. The Closing Date for the
Reorganization shall be November 21, 2016, or such other
date as the parties to such Reorganization may agree to in
writing. All acts taking place at the Closing shall be deemed
to take place immediately prior to the opening of trading on
the NYSE on the Closing Date unless otherwise
provided. The Closing shall be held at the offices of the
Acquired Fund or at such other place as the parties may agree.
3.2.State Street, the custodian for the
Acquiring Fund, shall deliver as soon as practicable after the
Closing a certificate of an authorized officer stating that:
(a) the Acquired Fund's portfolio securities, cash and any
other assets have been delivered in proper form to the
Acquiring Fund on the Closing Date; and (b) all necessary
taxes, including all applicable federal and state stock transfer
stamps, if any, have been paid, or provision for payment has
been made, in conjunction with the delivery of portfolio
securities.
0.0.Xx the event that on the Valuation
Date (a) the NYSE or another primary trading market for
portfolio securities of the Acquiring Fund or the Acquired
Fund shall be closed to trading or trading thereon shall be
restricted; or (b) trading or the reporting of trading on the
NYSE or elsewhere shall be disrupted so that accurate
appraisal of the value of the net assets of the Acquiring Fund
or the Acquired Fund is impracticable, the Closing Date shall
be postponed until the first business day after the day when
trading shall have been fully resumed and reporting shall have
been restored.
3.4.The Acquired Fund shall instruct
its transfer agent to provide at the Closing, or immediately
prior to the Closing, a list of the names and addresses of the
Acquired Fund's shareholders and the number and value of
each class of outstanding Shares owned by each such
shareholder to the Acquiring Fund's transfer agent. The
Acquiring Fund shall instruct its transfer agent to issue and
deliver a confirmation evidencing the value of the Acquiring
Fund Shares to be credited to the Acquired Fund's account on
the Closing Date to the Secretary of the Aberdeen Trust or
provide evidence satisfactory to the Acquired Fund that such
Acquiring Fund Shares have been credited to the Acquired
Fund's account on the books of the Acquiring Fund. At the
Closing, the Aberdeen Trust, on behalf of the Funds, shall
deliver to counsel any bills of sale, checks, assignments, share
certificates, if any, receipts or other documents as counsel may
request.
4.Representations and Warranties
4.1.The Aberdeen Trust, on behalf of
each Fund, represents and warrants that:
(a) The Funds are not, and the
execution, delivery and performance of this Agreement by the
Aberdeen Trust will not result, in a violation of the Aberdeen
Trust's Agreement and Declaration of Trust, as amended, or
By-Laws or any material agreement, indenture, instrument,
contract, lease or other undertaking to which the Aberdeen
Trust, on behalf of the Funds, is a party or by which the Funds
or their property are bound;
(b) There are no contracts or other
commitments (other than this Agreement) of the Acquired
Fund which will be terminated with liability to the Acquired
Fund prior to the Closing Date;
(c) The Aberdeen Trust is a registered
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 Investment Company Act of 1940, as
amended (the "1940 Act"), is in full force and effect;
(d) No litigation or administrative
proceeding or investigation of or before any court or
governmental body is presently pending or to its knowledge
threatened against the Funds or any of their properties or
assets which, if adversely determined, would materially and
adversely affect their financial condition or the conduct of
their business. The Aberdeen Trust knows of no facts which
might form the basis for the institution of such proceedings
and are not a party to or subject to the provisions of any order,
decree or judgment of any court or governmental body which
materially and adversely affects their business or their ability
to consummate the transactions contemplated herein;
(e) The Statements of Assets and
Liabilities of the Acquired Fund as of October 31, 2015,
including the Schedule of Investments and the related
Statement of Operations for the year then ended, the Statement
of Changes in Net Assets for each of the two years in the
period then ended and the Financial Highlights for each of the
five years in the period then ended, have been audited by
KPMG LLP, an independent registered public accounting
firm, and are in accordance with generally accepted
accounting principles consistently applied, and such
statements (copies of which have been furnished to the
Acquiring Fund) fairly reflect the financial condition of the
Acquired Fund as of such dates, and such statements (copies
of which have been furnished to the Acquiring Fund) fairly
reflect the financial condition of the Acquired Fund as of such
dates. The unaudited financial statements of the Acquired
Fund for the six-months ended April 30, 2016 have been
prepared in accordance with generally accepted accounting
principles consistently applied, and such statements (copies of
which have been furnished to the Acquiring Fund) fairly
reflect the financial condition of the Acquired Fund as of such
dates, and there are no known contingent liabilities of the
Acquired Fund as of November 3, 2016 that are not disclosed
therein.
(f) Since October 31, 2015 and
April 30, 2016, there has not been any material adverse
change in the Acquired Fund's 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. For purposes of this
subparagraph (f), a decline in net asset value per share of the
Acquired Fund due to declines in market values of securities
in the Acquired Fund's portfolio, the discharge of Acquired
Fund liabilities, or the redemption of Acquired Fund shares by
Acquired Fund shareholders shall not constitute a material
adverse change;
(g) At the date hereof and at the
Closing Date, all federal and other tax returns and reports,
including extensions, of the Acquired Fund required by law to
have been filed by such dates shall have been filed and are or
will be correct in all material respects, and all federal and
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 Fund's knowledge, no such return is currently
under audit and no assessment has been asserted with respect
to such returns;
(h) To the knowledge of the Aberdeen
Trust, the Acquiring Fund will meet the requirements of
Subchapter M of the Code for qualification as a regulated
investment company from and including the taxable year that
includes the Closing Date and will be eligible to, and will,
compute its federal income tax under Section 852 of the Code;
(i)For each taxable year of its
operation (including the taxable year ending on the Closing
Date), 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; and the Acquired Fund will
have distributed all of its investment company taxable income
and net capital gain (as defined in the Code) that has accrued
through the Closing Date;
(j) All of the issued and outstanding
shares of beneficial interest of the Acquired Fund will, at the
time of Closing, be held by the persons and in the amounts set
forth in the records of the transfer agent as provided in
paragraph 3.4. The Acquired Fund does not have outstanding
any options, warrants or other rights to subscribe for or
purchase any of its shares, nor is there outstanding any
security convertible into any of its shares;
(k) At the Closing Date, the Acquired
Fund will have good and marketable title to the Acquired
Fund's assets to be transferred to the Acquiring Fund pursuant
to paragraph 1.2 and full right, power and authority to sell,
assign, transfer and deliver such assets hereunder. Upon
delivery and payment for such assets, the Acquiring Fund will
acquire good and marketable title thereto, subject to no
restrictions on the full transfer thereof, except such restrictions
as might arise under the Securities Act of 1933, as amended
(the "1933 Act"), and the 1940 Act with respect to privately
placed or otherwise restricted securities that the Acquired
Fund may have acquired in the ordinary course of business
and of which the Acquiring Fund has received notice and
necessary documentation at or prior to the Closing;
(l) The information to be furnished by
the Acquiring Fund and Acquired Fund for use in applications
for orders, registration statements or proxy materials or for use
in any other document filed or to be filed with any federal,
state or local regulatory authority (including the Financial
Industry Regulatory Authority), which may be necessary in
connection with the transactions contemplated hereby, shall be
accurate and complete in all material respects and shall
comply in all material respects with federal securities and
other laws and regulations applicable thereto;
(m) The current prospectus and
statement of additional information of the Acquiring Fund and
Acquired Fund on Form N-1A 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
materially misleading; and
(n)The Acquiring Fund agrees to use
all reasonable efforts to obtain the approvals and
authorizations required by the 1933 Act, 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.
4.2. AAMI represents and warrants to
the Acquiring Fund as follows: To the knowledge of AAMI,
(i) there are no claims, actions, suits or proceedings pending
against the Acquired Fund, and (ii) there are no claims,
actions, suits or proceedings threatened, or circumstances that
have been identified by AAMI and the Secretary thereof as
reasonably likely to give rise to any claims, actions, suits or
proceedings against the Acquired Fund that would materially
adversely affect the Acquired Fund or its assets or business,
other than those disclosed in writing to and accepted by the
Acquiring Fund.
5. Covenants of the Acquired Fund
and the Acquiring Fund
5.1. The Acquiring Fund and the
Acquired Fund will operate their respective businesses in the
ordinary course between the date hereof and the Closing Date,
it being understood that, with respect to the Acquired Fund,
such ordinary course of business will include purchases and
sales of portfolio securities and other instruments, sales and
redemptions of Acquired Fund shares, and the declaration and
payment of customary dividends and distributions, and with
respect to the Acquiring Fund, it shall be limited to such
actions as are customary to the organization of a new series
prior to its commencement of operations.
5.2. The Acquired Fund covenants that
(i) the Acquiring Fund Shares to be issued hereunder are not
being acquired for the purpose of making any distribution
thereof other than in accordance with the terms of this
Agreement; (ii) to the best of the knowledge of the Acquired
Fund, there is no plan or intention by Acquired Fund's
Shareholders to sell, exchange or otherwise dispose of a
number of Acquired Fund Shares (or Acquiring Fund Shares
received in the Reorganization), in connection with the
Reorganization, that would reduce the Acquired Fund
Shareholders' ownership of Acquired Fund Shares (or
equivalent Acquiring Fund Shares) to a number of shares that
is less than 50 percent of the number of Acquired Fund Shares
as of the record date of the Reorganization; and (iii) the
Acquired Fund will not take any position on any federal, state
or local income or franchise tax return, or take any other tax
reporting position, that is inconsistent with the treatment of the
Reorganization as a "reorganization" within the meaning of
Section 368(a) of the Code.
5.3.Subject to the provisions of this
Agreement, the Aberdeen Trust on behalf of the Acquiring
Fund and the Acquired Fund will 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.
5.4. The Acquiring Fund agrees to
indemnify and advance expenses to each person who at the
time of the execution of this Agreement serves as a Trustee or
Officer ("Indemnified Person") of the Aberdeen Trust, against
money damages actually and reasonably incurred by such
Indemnified Person in connection with any claim that is
asserted against such Indemnified Person arising out of such
person's service as a Trustee or officer of the Aberdeen Trust,
as such service involves the Acquired Fund, with respect to
matters specifically relating to the Reorganization, provided
that such indemnification and advancement of expenses shall
be permitted to the fullest extent that is available under
applicable law. This paragraph 5.4 shall not protect any such
Indemnified Person against any liability to the Acquired Fund,
the Acquiring Fund or their shareholders to which he or she
would otherwise be subject by reason of willful misfeasance,
bad faith, gross negligence or from reckless disregard of the
duties involved in the conduct of his or her office. An
Indemnified Person seeking indemnification shall be entitled
to advances from the Acquiring Fund for payment of the
reasonable expenses incurred by him or her in connection with
the matter as to which he or she is seeking indemnification in
the manner and to the fullest extent permissible under
applicable law. Such Indemnified Person shall provide to the
Acquiring Fund a written affirmation of his or her good faith
belief that the standard of conduct necessary for
indemnification by the Acquiring Fund under this paragraph
has been met and a written undertaking to repay any advance
if it should ultimately be determined that the standard of
conduct has not been met. In addition, at least one of the
following additional conditions shall be met: (a) the
Indemnified Person shall provide security in form and amount
acceptable to the Acquiring Fund for its undertaking; (b) the
Acquiring Fund is insured against losses arising by reason of
the advance; or (c) either a majority of a quorum of
disinterested non-party trustees of the Acquiring Fund, or
independent legal counsel experienced in mutual fund matters,
selected by the Indemnified Person, in a written opinion, shall
have determined, based on a review of facts readily available
to the Acquiring Fund at the time the advance is proposed to
be made, that there is reason to believe that the Indemnified
Person will ultimately be found to be entitled to
indemnification.
5.5. The intention of the parties is that
the transaction will qualify as a reorganization within the
meaning of Section 368(a) of the Code. Neither the Acquiring
Fund, the Acquired Fund nor the Aberdeen Trust shall take
any action, or cause any action to be taken (including, without
limitation, the filing of any tax return) that is inconsistent with
such treatment or results in the failure of the transaction to
qualify as a reorganization within the meaning of
Section 368(a) of the Code. At or prior to the Closing Date,
the Acquiring Fund, the Acquired Fund and the Aberdeen
Trust will take such action, or cause such action to be taken, as
is reasonably necessary to enable Xxxxxxx Xxxx & Xxxxxxxxx
LLP to render the tax opinion contemplated here in paragraph
7.4.
5.6. AAMI agrees that the Acquiring
Fund will succeed to all rights that the Acquired Fund has, or
would have but for the Reorganization, against AAMI or its
affiliates by reason of any act or failure to act by AAMI or any
of its affiliates prior to the Closing Date.
6. Conditions Precedent to
Obligations of the Aberdeen Trust
The obligations of the Aberdeen
Trust, on behalf of the Funds, to consummate the transactions
provided for herein shall be subject, at its election, to the
performance by the Aberdeen Trust, on behalf of the Funds, of
all of the obligations to be performed by it hereunder on or
before the Closing Date and, in addition thereto, the following
further conditions:
6.1. All representations and warranties
by the Aberdeen Trust, the Acquired Fund or Acquiring 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;
6.2. The Aberdeen Trust has delivered,
on behalf of each Fund, a certificate executed in its name by
its Chairman, President, Vice President, Secretary or Treasurer
and dated as of the Closing Date, to the effect that the
representations and warranties of the Aberdeen Trust made in
this Agreement are true and correct at and as of the Closing
Date, except as they may be affected by the transactions
contemplated by this Agreement; and
6.3. The Aberdeen Trust, on behalf of
the Funds, shall have received on the Closing Date a favorable
opinion from Xxxxxxx Xxxx & Xxxxxxxxx LLP, counsel to the
Aberdeen Trust, dated as of the Closing Date, covering the
following points: That (a) the Aberdeen Trust is validly
existing in good standing as a statutory trust under the Act,
and has the trust power and authority under its Agreement and
Declaration of Trust, By-Laws and resolutions adopted by its
Board of Trustees (together, the "Aberdeen Trust
Documents") and the Act to execute, deliver and perform its
obligations under the Agreement and to carry on its business
as a registered management investment company; (b) the
execution and delivery of the Agreement and the
consummation by the Aberdeen Trust of the transactions
contemplated thereby have been duly authorized by the
Aberdeen Trust under the Aberdeen Trust Documents and the
Act; (c) the Agreement has been duly executed and delivered
by the Aberdeen Trust; (d) each Fund has been duly
established as a separate series of the Aberdeen Trust under its
Agreement and Declaration of Trust and Section 3806(b)(2) of
the Act; (e) assuming due authorization, execution and
delivery of the Agreement by the other parties to the
Agreement, the Agreement is a valid and binding obligation of
the Aberdeen Trust enforceable in accordance with its terms,
subject to (i) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium, receivership or other laws of
general application relating to or affecting the enforcement of
creditors' rights and remedies, as from time to time in effect,
(ii) application of equitable principles (regardless of whether
such enforceability is considered in a proceeding in equity or
at law), (iii) considerations of public policy or the effect of
applicable law relating to fiduciary duties and (iv) principles
of course of dealing or course of performance and standards of
good faith, fair dealing, materiality and reasonableness that
may be applied by a court to the exercise of rights and
remedies; provided, however, that such counsel shall express
no opinion with respect to any document referenced in, or
incorporated by reference into, the Agreement; (f) neither the
execution, delivery and performance by the Aberdeen Trust of
the Agreement, nor the consummation by the Aberdeen Trust
of the transactions contemplated thereby, violates (i) the
Aberdeen Trust Documents or (ii) any law, rule or regulation
of the State of Delaware applicable to the Aberdeen Trust;
(g) the execution and delivery of the Agreement and the
consummation of the transactions contemplated hereby do not
result in a material violation of any provision of any
agreement filed as an exhibit to the Aberdeen Trust's
Registration Statement on Form N-1A or such agreements that
the Aberdeen Trust has represented to such counsel are the
only other agreements that are material to the Aberdeen Trust
and which are identified in an exhibit to the opinion
(collectively, the "Aberdeen Material Agreements") to which
the Aberdeen Trust, on behalf of each Fund, is a party or by
which it or its property is bound or, result in the acceleration
of any obligation or the imposition of any penalty, under any
Aberdeen Material Agreement, judgment, or decree, known to
such counsel, to which a Fund is a party or by which it or its
property is bound; (h) neither the execution, delivery and
performance by the Aberdeen Trust of the Agreement, nor the
consummation by the Aberdeen Trust of any of the
transactions contemplated thereby, requires the consent or
approval of, the withholding of objection on the part of, the
giving of notice to, the filing, registration or qualification
with, or the taking of any other action in respect of, any
governmental authority or agency of the United States or the
State of Delaware, other than the filing of the Certificate of
Trust of the Aberdeen Trust (which Certificate of Trust has
been duly filed); (i) to the knowledge of such counsel, there is
no legal, administrative or governmental proceeding,
investigation, order, decree or judgment of any court or
governmental body, only insofar as they relate to the
Aberdeen Trust, on behalf of each Fund, or its assets or
properties, pending, threatened or otherwise existing on or
before the Closing Date, which materially and adversely
affects the Funds' business; (j) the Aberdeen Trust is
registered as an investment company under the 1940 Act, and,
to the knowledge of such counsel, its registration with the
Commission as an investment company under the 1940 Act is
in full force and effect; and (k) the shares of the Acquiring
Fund to be issued as provided for by the Agreement are duly
authorized, and upon issuance will be validly issued, fully paid
and non-assessable beneficial interests in the Acquiring Fund,
and under the Aberdeen Trust's Agreement and Declaration of
Trust, no shareholder of the Acquiring Fund has any
preemptive right or similar rights.
With respect to all matters of
Delaware law, such counsel shall be entitled to state that it has
relied upon the opinion of Xxxxxxxx, Xxxxxx & Xxxxxx, PA and
that its opinion is subject to the same assumptions,
qualifications and limitations with respect to such matters as
are contained in the opinion of Xxxxxxxx, Xxxxxx & Xxxxxx,
PA.
7. Further Conditions Precedent to
Obligations of the Acquiring Fund and the Acquired Fund
If any of the conditions set forth
below do not exist on or before the Closing Date with respect
to the Funds, the Aberdeen Trust shall not be required to
consummate the transactions contemplated by this Agreement.
7.1. The Board of Trustees of the
Aberdeen Trust, including a majority of the trustees who are
not "interested persons" of the Aberdeen Trust (as defined by
the 1940 Act), shall have determined that this Agreement and
the transactions contemplated hereby are in the best interests
of each Fund and that the interests of the shareholders in each
Fund would not be diluted as a result of such transactions.
7.2. On the Closing Date no action, suit
or other proceeding shall be 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.
7.3.All 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 and securities authorities, including "no-
action" positions of and exemptive orders from such federal
and state authorities) and approval by shareholders of the
Acquired Fund deemed necessary by the Aberdeen Trust to
permit consummation, in all material respects, 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 Acquiring Fund or the Acquired
Fund.
7.4. The Aberdeen Trust shall have
received on the Closing Date an opinion of Xxxxxxx Xxxx &
Xxxxxxxxx LLP, addressed to, and in form and substance
reasonably satisfactory to, the Acquired Fund and the
Acquiring Fund and dated as of the Closing Date, substantially
to the effect that for U.S. federal income tax purposes:
(a)The transfer of all of the Acquired
Fund's assets to the Acquiring Fund in exchange for the
Acquiring Fund Shares and the assumption by the Acquiring
Fund of the liabilities of the Acquired Fund, followed by the
distribution by the Acquired Fund of such Acquiring Fund
Shares to shareholders of the Acquired Fund in complete
liquidation of the Acquired Fund, all pursuant to the
Agreement, will constitute a "reorganization" within the
meaning of Section 368(a) of the Code, and the Acquiring
Fund and the Acquired Fund will each be a "party to a
reorganization" within the meaning of Section 368(b) of the
Code; (b) no gain or loss will be recognized by the Acquiring
Fund on the receipt of the assets of the Acquired Fund solely
in exchange for the Acquiring Fund Shares and the assumption
by the Acquiring Fund of the liabilities of the Acquired Fund;
(c) except for gain or loss regularly attributable to the
termination of the Acquired Fund's taxable year, no gain or
loss will be recognized by the Acquired Fund upon the
transfer of the Acquired Fund's assets to the Acquiring Fund
in exchange for the Acquiring Fund Shares and the assumption
by the Acquiring Fund of the liabilities of the Acquired Fund
or upon the distribution of the Acquiring Fund Shares to the
Acquired Fund's shareholders in exchange for their shares of
the Acquired Fund; (d) no gain or loss will be recognized by
shareholders of the Acquired Fund upon the exchange of their
Acquired Fund shares of beneficial interest for the Acquiring
Fund Shares or upon the assumption by the Acquiring Fund of
the liabilities of the Acquired Fund; (e) the aggregate tax basis
of the Acquiring Fund Shares received by each of the
Acquired Fund's shareholders pursuant to the Reorganization
will be the same as the aggregate tax basis of the Acquired
Fund shares of beneficial interest held by such shareholder
immediately prior to the Reorganization, and the holding
period of the Acquiring Fund Shares to be received by each
Acquired Fund shareholder will include the period during
which the Acquired Fund shares of beneficial interest
exchanged therefor were held by such shareholder (provided
that such Acquired Fund shares of beneficial interest were
held as capital assets on the date of the Reorganization); and
(f) except for assets which may be marked to market for
federal income tax purposes as a consequence of a termination
of the Acquired Fund's taxable year, the tax basis of the
Acquired Fund's assets acquired by the Acquiring Fund will
be the same as the tax basis of such assets to the Acquired
Fund immediately prior to the Reorganization and the holding
period of the assets of the Acquired Fund in the hands of the
Acquiring Fund will include the period during which those
assets were held by the Acquired Fund. The delivery of such
opinion is conditioned upon the receipt by Xxxxxxx Xxxx &
Xxxxxxxxx LLP of representations it shall request of the
Aberdeen Trust.
Notwithstanding anything herein to
the contrary, neither the Acquiring Fund nor the Acquired
Fund may waive the conditions set forth in this paragraph 7.4.
8. Brokerage Fees and Expenses;
Other Agreements
8.1. Each Fund represents and warrants
that there are no brokers or finders or other entities to receive
any payments in connection with the transactions provided for
herein.
8.2. AAMI or its affiliates agrees to
bear the reasonable expenses that are solely and directly
related to the transactions contemplated by this Agreement
(determined in accordance with the guidelines set forth in Rev.
Rul. 73-54, 1973-1 C.B. 187), whether or not consummated
(excluding extraordinary expenses such as litigation expenses,
damages and other expenses not normally associated with
transactions of the type contemplated by this
Agreement). These expenses consist of: (i) expenses
associated with preparing this Agreement, a supplement to the
Acquired Fund's prospectus and statement of additional
information; (ii) expenses associated with filing the
supplement to the Acquired Fund's prospectus and statement
of additional information; (iii) registration or qualification fees
and expenses of preparing and filing such forms, if any,
necessary under applicable state securities laws to qualify the
Acquiring Fund Shares to be issued in connection with the
Reorganization; (iv) postage, printing, accounting fees and
legal fees incurred by the Acquiring Fund and by the Acquired
Fund in connection with the transactions contemplated by this
Agreement; and (v) any other reasonable Reorganization
expenses. These expenses do not include brokerage or trading
expenses, including those related to securities sold prior to and
immediately following the Reorganization to realign the
portfolio of the Target Fund. Notwithstanding any of 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 another person of such expenses would result in
the disqualification of such party as a "regulated investment
company" within the meaning of Section 851 of the Code or
would prevent the Reorganization from qualifying as a tax-
free reorganization.
8.3.Any other provision of this
Agreement to the contrary notwithstanding, any liability of
either Fund under this Agreement, or in connection with the
transactions contemplated herein with respect to such Fund,
shall be discharged only out of the assets of such Fund.
9.Entire Agreement; Survival of
Warranties
9.1. The Aberdeen Trust, on behalf of
the Acquiring Fund and the Acquired Fund, agrees that it has
not made any representation, warranty or covenant not set
forth herein and that this Agreement constitutes the entire
agreement.
9.2. The representations, warranties and
covenants contained in this Agreement or in any document
delivered pursuant hereto or in connection herewith shall
survive the consummation of the transactions contemplated
hereunder.
10. Termination
This Agreement may be terminated
at any time at or prior to the Closing Date by a vote of a
majority of the Board of Trustees of the Aberdeen Trust.
11. Amendments
This Agreement may be amended,
modified or supplemented in writing in such manner agreed
upon by the authorized officers of the Aberdeen Trust.
12. Notices
12.1.Any notice, report, statement or
demand required or permitted by any provisions of this
Agreement shall be in writing and shall be given by prepaid
telegraph, telecopy or certified mail addressed to the
Acquiring Fund at:
0000 Xxxxxx Xxxxxx, 00xx
Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Legal
or to the Acquired Fund at:
0000 Xxxxxx Xxxxxx, 00xx
Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Legal
13. Headings; Counterparts; Governing
Law; Assignment; Limitation of Liability
13.1.The article and paragraph headings
contained in this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation
of this Agreement.
13.2.This Agreement may be executed
in any number of counterparts, each of which shall be deemed
an original.
13.3. This Agreement shall be governed
by and construed in accordance with the laws of the State of
New York.
13.4. This Agreement shall bind 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. Except as
provided in this paragraph and paragraph 5.4, 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.
IN WITNESS WHEREOF, each of the parties hereto
has caused this Agreement to be executed by its Chairman,
President, Vice President or Managing Trustee and attested to
by its Vice President, Secretary or Assistant Secretary.
ABERDEEN FUNDS
For and on Behalf of
ABERDEEN GLOBAL
NATURAL RESOURCES
FUND and ABERDEEN
GLOBAL EQUITY FUND
By:
/s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: V.P.
Solely with respect to paragraphs 4.2, 5.6 and 8.2 hereof:
ABERDEEN ASSET
MANAGEMENT INC.
By:
/s/ Xxxxx X'Xxxxxx
Name: Xxxxx X' Xxxxxx
Title: Vice President
