EXHIBIT 6.1
DISTRIBUTION AGREEMENT
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AGREEMENT, made as of this 17th day of October 1995, by and between
The Navellier Performance Funds, a business trust organized under the laws of
the State of Delaware (the "Fund"), and Navellier Securities Corp., a
corporation organized under the laws of the State of Delaware (the
"Distributor").
W I T N E S S E T H
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WHEREAS, the Fund is registering as an investment company under the
Investment Company Act of 1940, as amended (the "1940 Act"), and intends to
engage in business as an open-end management investment company;
WHEREAS, the Fund desires to employ the Distributor to act as
principal underwriter (as defined in the Act) with respect to the continuous
offering of its shares of common stock, at no par value (the "Shares), which
shall initially be sold in the first of a series of portfolios (the "Navellier
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Aggressive Growth Portfolio"), along with any other series as may be created in
the future, from time to time (the "Portfolios"), and the Distributor is willing
to serve in such capacity pursuant to the terms and conditions of this
Agreement;
WHEREAS, this Agreement has been approved by a vote of the Board of
Trustees of the Fund, including a majority of the Trustees who are not
"interested persons" of the Fund, as defined in the Act, and who have no direct,
or indirect financial interest in the operation of this Agreement (the
"disinterested Trustees") cast in person at a meeting called for the purpose of
voting on this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, the receipt of which is
hereby acknowledged, it is agreed by and between the parties hereto as follows:
1. Appointment of the Distributor.
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(a) The Fund hereby appoints the Distributor as the principal
underwriter and distributor of each of the Fund's Portfolios whether now
existing or hereafter created, to sell and to arrange for the sale of Shares to
the public on the terms set forth in this Agreement and the Distributor hereby
accepts such appointment and agrees to act in accordance herewith. The Fund,
during the term of this Agreement, shall sell Shares to the Distributor upon the
terms and conditions set forth herein.
(b) The Distributor agrees to purchase Shares, as principal for its
own account, from the Fund and to sell Shares, as principal, to investors and
dealers, upon the terms described herein and in the Fund's prospectus (the
"Prospectus") and statement of additional information (the "Statement of
Additional Information") included in the Fund's Registration Statement (the
"Registration Statement") last filed with the Securities and Exchange Commission
(the "SEC") and declared effective under the 1933 Act and 1940 Act or as said
Prospectus and Statement of Additional Information may be otherwise amended or
supplemented from time to time thereafter.
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2. Exclusive Nature of Duties. The Distributor shall be the
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exclusive representative of the Fund, in respect of the Portfolios, and act as
its principal underwriter and distributor, except that neither the exclusive
rights granted to the Distributor to sell the Shares nor the right to receive
compensation under Section 3(b) hereof or otherwise hereunder shall apply to
Shares issued by the Fund (i) in connection with the merger or consolidation of
any other investment company or personal holding company with the Fund or the
Portfolios or the acquisition by purchase or otherwise of all (or substantially
all) of the assets or outstanding shares of any such company by the Fund or the
Portfolios, or (ii) pursuant to reinvestment of dividends or capital gains
distributions.
3. Purchase of Shares from the Fund and Compensation of Distributor.
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(a) Subsequent to the effective date of the Registration Statement,
the Fund will commence a continuous offering of the Shares. During such
continuous offering, the Distributor shall have the right to buy from the Fund
the Shares needed, but not more than the Shares needed (except for clerical
errors in transmissions), to fill unconditional orders for Shares placed with
the Distributor by investors or securities dealers. The price which the
Distributor shall pay for the Shares so purchased from the Fund shall be the net
asset value (determined as set forth in Section 3(e) hereof) used in determining
the public offering price on which such orders were based.
(b) The Rule 12b-1 fee provided for in Section 8 hereof and in the
12b-1 Plan of even date herewith shall constitute the entire compensation (and
fees reimbursed) of the Distributor for acting as principal underwriter and
distributor of the Portfolios.
(c) The Shares of the Navellier Aggressive Growth Portfolio are to be
resold by the Distributor to investors at the net asset value, or to Selected
Dealers (as hereinafter defined) having agreements with the Distributor upon the
terms and conditions set forth in Section 7 hereof.
(d) The public offering price(s) of the Shares, i.e., the price per
share at which the Distributor or Selected Dealers (as hereinafter defined) may
sell the Shares to the public, shall be the net asset value plus sales charge,
if any, of each Portfolio as set forth in the then current Prospectus and the
Statement of Additional Information relating to the Shares. If the public
offering price does not equal an even cent, the public offering price may be
adjusted to the nearest cent. All payments to the Fund hereunder shall be made
in the manner set forth in Section 3(g).
(e) The net asset value of the shares of each Portfolio of the Fund
shall be determined by the Fund or any agent of the Fund once daily at the times
and otherwise in accordance with the terms set forth in the Prospectus and the
Statement of Additional Information and guidelines established by the Board of
Trustees of the Fund, from time to time.
(f) The Fund shall have the right to suspend the sale of the Shares at
times when redemption is suspended pursuant to the conditions set forth in
Section 4(c) hereof. The Fund shall also have the right to suspend the sale of
the Shares if trading on the New York Stock Exchange or other exchange or system
on which stocks of the Fund are traded
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shall have been suspended, if a banking moratorium shall have been declared by
federal or state authorities, or if there shall have been some other
extraordinary event, which, in the judgment of the Fund, makes it impracticable
to sell the Shares. The Fund also reserves the right to suspend the sale of
Shares at any time, in the absolute discretion of its Board of Trustees.
(g) The Fund, or any agent of the Fund designated in writing by the
Fund, shall be promptly advised of all purchase orders for Shares received by
the Distributor, or Transfer Agent. Any order may be rejected by the Fund;
provided, however, that the Fund will not arbitrarily or without reasonable
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cause refuse to accept orders for the purchase of Shares. The Distributor (or
its agent) upon receipt of payment therefore will enter the purchase and
ownership on its books (in lieu of issuing stock certificates) or a statement
confirming the issuance of Shares. The Distributor agrees to cause such payment
and such instructions to be delivered promptly to the Fund (or its agent).
4. Repurchase or Redemption of Shares.
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(a) Any of the outstanding shares of any Portfolio may be tendered for
redemption at any time, and the Fund agrees to redeem the Shares so tendered in
accordance with the applicable provisions set forth in the Prospectus and the
Statement of Additional Information. The price to be paid to redeem the Shares
shall be equal to the net asset value calculated in accordance with the
provisions of Section 3(e) hereof. All payments by the Fund hereunder shall be
made in the manner set forth below.
The Fund, on behalf of the applicable Portfolio, shall pay the total
amount of the redemption price subsequent to its having received the notice of
redemption in proper form, all in accordance with applicable provisions of the
Prospectus and the Statement of Additional Information on or before the seventh
day after receipt of notice of redemption.
(b) The Distributor is authorized, as agent for the Fund, to
repurchase Shares from investors and Selected Dealers in accordance with the
applicable provisions set forth in the then current Prospectus and the Statement
of Additional Information. The Distributor shall promptly transmit to the
Fund's Transfer Agent for redemption, all orders so received from Selected
Dealers or investors for the repurchase of Shares. The Distributor shall be
responsible for the accuracy of instructions transmitted to the Fund's transfer
agent in connection with all such repurchases.
(c) The Fund may suspend the right of redemption or dealer payment
more than seven days (a) during any period when the New York Stock Exchange or
other exchange is closed (other than a customary weekend and holiday closing),
(b) when trading on any Exchange is restricted or an emergency exists as
determined by the Securities and Exchange Commission or the Fund so that
disposal of the Fund's investments or determination of the net asset value of
the Portfolios is not reasonably practicable, or (c) during any other period
when the Securities and Exchange Commission, by order, so permits.
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5. Duties of the Fund.
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(a) The Fund shall furnish to the Distributor copies of all
information (including, without limitation, sales literature and
advertisements), financial statements and other papers prepared (or caused by
the Fund to be prepared) for publication or distribution which refer in any way
to the Distributor, prior to the use thereof, and shall not use such material if
the Distributor reasonably objects in writing within five (5) business days (or
such other time as may be mutually agreed) after receipt thereof. The foregoing
sentence shall survive the termination of this Agreement. The Fund shall furnish
or otherwise make available to the Distributor such other information as the
Distributor may reasonably request for use in connection with the distribution
of the Shares, including one certified copy, upon request by the Distributor, of
all financial statements prepared by the Fund, in respect of the Portfolios, and
examined by independent accountants. The Fund shall, subject to the provisions
of Section 8 hereof, make available to the Distributor such number of copies of
the Prospectus and the Statement of Additional Information as the Distributor
shall reasonably request.
(b) The Fund shall take, from time to time, but subject to the
necessary approval of the Portfolios' shareholders (as may be required by
applicable law), all necessary action to fix the number of its authorized Shares
and to register the Shares under the 1933 Act, to the end that there will be
available for sale such number of the Shares as investors may reasonably be
expected to purchase.
(c) The Fund shall use its best efforts to qualify and maintain the
qualification of an appropriate number of the Shares for sale under the
securities laws of such states as the Distributor and the Fund may approve. Any
such qualification may be withheld, terminated or withdrawn by the Fund at any
time in its discretion. The Distributor shall furnish such information and
other material relating to its affairs and activities as may be required by the
Fund in connection with such qualification.
(d) The Fund shall immediately advise the Distributor (i) when any
post-effective amendment to its Registration Statement or any further amendment
or supplement thereto or any further Registration Statement or amendment or
supplement thereto becomes effective, (ii) of any request by the SEC for
amendment to the Registration Statement or the then effective Prospectus or for
additional information, (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement, or the
initiation of any proceedings for that purpose, and (iv) of the happening of any
event which makes untrue any material statement made in the Registration
Statement or the current Prospectus or which, in the opinion of counsel for the
Fund, requires the making of a change in the Registration Statement or the
current Prospectus in order to make the statements therein not misleading. In
case of the happening at any time of any event which materially affects the Fund
or its securities and which should be set forth in a supplement to or an
amendment of the then effective Prospectus in order to make the statements
therein not misleading, the Fund shall prepare and furnish to the Distributor
such amendment or amendments to the then effective Prospectus, as will correct
the Prospectus so that as corrected it will not contain, or such supplement or
supplements to the then effective Prospectus which, when read in conjunction
with the then effective Prospectus, will make the combined
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information not contain any untrue statement of a material fact or any omission
to state any material fact necessary in order to make the statements in the then
effective Prospectus not misleading. The Fund shall, if at any time the SEC
shall issue any stop order suspending the effectiveness of the Registration
Statement, make reasonable effort to obtain the prompt lifting of such order.
(e) Except as otherwise contemplated by Section 8(a) hereof, the Fund
shall, at the expense of the Distributor, furnish, in reasonable quantities upon
request of the Distributor, copies of Prospectuses, Statements of Additional
Information, Proxies and annual and interim reports of the Fund, in respect of
the Portfolios.
6. Duties of the Distributor.
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(a) The Distributor shall devote reasonable time and effort to effect
sales of the Shares (but only in states and other jurisdictions in which it may
legally do so), but shall not be obligated to sell any specific number of
Shares. The services of the Distributor hereunder are not to be deemed
exclusive and nothing herein contained shall prevent the Distributor from
entering into distribution or dealer arrangements with other investment
companies so long as the performance of its obligations hereunder are not
impaired thereby.
(b) Neither the Distributor nor any Selected Dealer nor any other
person is authorized by the Fund to give any information or to make any
representations, other than those contained in the Registration Statement or
related Prospectus and Statement of Additional Information and any sales
literature specifically approved by the Fund.
(c) The Distributor shall cooperate with the Fund in effecting the
qualifications contemplated by Section 5(c) hereof.
(d) The Distributor shall furnish to the Fund copies of all
information including, without limitation, sales literature and advertisements,
financial statements and other papers prepared (or caused by the Distributor to
be prepared) for the publication or distribution, which refer in any way to the
Fund, prior to the use thereof, and shall not use such material if the Fund
reasonably objects in writing within (5) business days (or such other time as
may be mutually agreed) after receipt thereof. The foregoing sentence shall
survive the termination of this Agreement.
(e) In selling the Shares, the Distributor shall use its best efforts
in all respects to duly conform with the requirements of all applicable federal,
state and foreign laws. In connection therewith, the Distributor shall use its
best efforts in granting any Distributor's Consent under Section 7(b) hereof, to
make certain that such Foreign Offer or Sale does not violate applicable law or
otherwise cause the Fund to have any liability with respect to such Foreign
Offer or Sale.
7. Selected Dealer Agreements.
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(a) The Distributor shall have the right to enter into selected dealer
agreements ("Selected Dealer Agreements") with securities dealers of its choice
(the "Selected
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Dealers") for the sale of Shares. In connection with such sales by Selected
Dealers, the Selected Dealer Agreement shall provide that the portion of the
Sales Charge which may be allocated to Selected Dealers shall be limited to all
or a portion of the Sales Charge as stated in the Fund's then current
Prospectus. In making agreements with Selected Dealers, the Distributor shall
act only as principal and not as agent for the Fund. Shares sold to Selected
Dealers shall be for resale by such dealers only at the public offering price(s)
set forth in the Prospectus and the Statement of Additional Information.
(b) The Distributor shall offer and sell Shares only to such Selected
Dealers as are (i) members in good standing of the National Association of
Securities Dealers (the "NASD"), or (ii) exempt from membership in the NASD. In
any Selected Dealer Agreement, the Distributor shall require the Selected Dealer
to obtain the written consent of the Distributor (the "Distributor's Consent")
prior to such Selected Dealer's making, causing to be made or otherwise
participating, directly or indirectly, in the making of any offer or sale of any
of the Fund's shares to any individual, corporation, partnership, trust, joint
venture, or other person or entity located outside of the United States of
America (a "Foreign Offer or Sale"). Such Selected Dealer Agreements shall also
provide that any Foreign Offer or Sale shall be made only upon the terms and in
accordance with the conditions set forth in the Distributor's Consent.
(c) The Distributor shall adopt and follow procedures, as approved by
the Fund, for the confirmation of sales and Shares to investors and Selected
Dealers, the collection of amounts payable by investors and Selected Dealers on
such sales, and the cancellation of unsettled transactions, as may be necessary
to comply with the requirements of the National Association of Securities
Dealers, as such requirements may from time to time exist.
8. Expenses.
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(a) Pursuant to its 12b-1 Distribution Plan and in order to further
enhance the distribution of the shares, the Fund shall, on a monthly basis,
reimburse the Distributor for the particular expenditures incurred by it in
connection with the distribution of such Fund portfolio Shares. Such
expenditures shall include, but shall not be limited to, the payment of
compensation (including incentive compensation such as continuing payments) to
financial consultants, sales and marketing personnel, broker-dealers, other
financial institutions and other organizations to obtain various distribution
related services for the Fund. These services include, among others, processing
new shareholder account application, preparing and transmitting to the Fund's
Transfer Agent computer processable tapes of transactions by customers and
serving as a source of information to customers in answering their questions
concerning the Fund and their transactions with the Fund. The Distributor is
also authorized to incur and be reimbursed for expenses for advertising, the
preparation and distribution of sales literature and other promotional
activities on behalf of the Fund. In addition, the Fund authorizes payment of
the cost of preparing, printing and distributing the Prospectuses and Statements
of Additional Information to prospective investors. The aggregate amount of any
annual distribution fees reimbursed under the 12b-1 Plan shall not exceed 0.25%
of the Fund's aggregate average daily net assets during any year with respect to
the Navellier Aggressive Growth Portfolio or any subsequent portfolio.
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The Fund is not obligated to pay any distribution expenses in excess
of the distribution fees to be reimbursed with respect to any one Portfolio,
pursuant to this Section 8.(a). In addition, any expenses of distribution of
the Fund's shares accrued by the Distributor in any one fiscal year of the Fund
may not be paid from distribution fees received from the Fund in subsequent
fiscal years and also will not be used to pay any interest expense, carrying
charges or other financing costs or overhead of the Distributor. "Overhead
costs" include items of expense generally referred to as overhead, including,
without limitation, costs related to leases, depreciation, salaries, payroll
taxes, supplies and insurance.
(b) The Fund shall, on a monthly basis, reimburse the Distributor for
particular expenditures incurred by it in connection with the distribution of
such Shares. Such expenditures shall include the cost of (i) preparation,
filing and printing of any Registration Statements and Prospectuses required to
be filed by or under applicable federal, state or foreign law, (ii) the
preparation and mailing of annual and interim reports, Prospectuses and proxy
material to current shareholders, (iii) qualifications of Shares for sale (and
the Fund as a broker, as applicable) under the securities laws of such states or
other jurisdiction as shall be selected by the Fund and the Distributor in
accordance with Section 5(c) hereof and the costs and expenses payable to each
such state or other jurisdiction for continuing qualifications therein.
(c) The Fund will not pay any of Distributor's interest expenses,
carrying charges, or other financing costs or the overhead of the Distributor.
"Overhead costs" include items of expense generally referred to as overhead,
including, without limitation, costs related to leases, depreciation, salaries,
payroll taxes, supplies and insurance.
(d) The Fund shall not bear the expense of the registration or
qualification of the Distributor as a dealer or a broker under federal, state or
other applicable law or the expenses of continuing such registration or
qualification.
9. Indemnification.
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(a) The Fund agrees with the Distributor, for the benefit of the
Distributor and each person, if any, who controls the Distributor within the
meaning of Section 15 of the Securities Act and each and all and any of them, to
indemnify and hold harmless the Distributor and any such controlling person from
and against any and all losses, claims, damages or liabilities, joint or several
(including reasonable legal fees and expenses) to which they or any of them may
become subject under the Securities Act or under any other statute, at common
law or otherwise, and to reimburse the Distributor and such controlling persons,
if any, for any legal or other expenses (including the cost of any investigation
and preparation) reasonably incurred by them in connection with any litigation,
whether or not resulting in any liability, insofar as such losses, claims,
damages, liabilities or litigation arise out of, or are based upon, any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement or any Prospectus, filed with the SEC, or any amendment
thereof or supplement thereto, or which arise out of, or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, that this indemnity agreement shall not apply to amounts paid
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in settlement of any such litigation if such settlement is effected without the
consent of the Fund or to any such losses, claims, damages, liabilities or
litigation arising out of, or based upon, any untrue statement or alleged untrue
statement of a material fact contained in any such Registration Statement or
prospectus, or any amendment thereof of or supplement thereof, or arising out
of, or based upon, the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
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statements therein not misleading, which statement or omission was made in
reliance upon information furnished in writing to the Fund by the Distributor
for inclusion in any such Registration Statement or Prospectus or any amendment
thereof or supplement thereto. The Distributor and each such controlling person
shall, within thirty (30) days after the complaint shall have been served upon
the Distributor or such controlling person in respect of which indemnity may be
sought from the Fund on account of its agreement contained in this paragraph,
notify the Fund in writing of the commencement thereof. The omission of the
Distributor of such controlling person so to notify the Fund of any such
litigation shall relieve the Fund from any liability which it may have to the
Distributor or such controlling person on account of the indemnity agreement
contained in this paragraph if such failure to timely notify the Fund has
resulted in substantial prejudice to the Fund, but shall not relieve the Fund
from any liability which it may have to the Distributor or controlling person
otherwise than on account of the indemnity agreement contained in this
paragraph. In case any such litigation shall be brought against the Distributor
or any such controlling person and notice of the commencement thereof shall have
been timely given to the Fund, the Fund shall be entitled to participate in
(and, to the extent that it shall wish, to direct) the defense thereof at its
own expense, but such defense shall be conducted by counsel of good standing and
reasonably satisfactory to the Distributor or such controlling person(s) or
defendant(s) in the litigation. The indemnity agreement of the Fund contained in
this paragraph shall remain operative and in full force and effect regardless of
any investigation made by or on behalf of the Distributor or any such
controlling person, and shall survive any delivery of shares of the Fund. The
Fund agrees to notify the Distributor promptly of the commencement of any
litigation or proceeding against it or any of it officers or directors of which
it may be advised in connection with the issue and sale of shares of the Fund.
(b) Anything herein to the contrary notwithstanding, the agreement in
subparagraph (a) of this Section, insofar as it constitutes a basis of
reimbursement by the Fund for liabilities (other than payment by the Fund of
expenses incurred or paid in the successful defense of any action, suit or
proceeding) arising under the Securities Act, shall not extend to the extent of
any interest therein of any person who is an underwriter or a partner or
controlling person of an underwriter within the meaning of Section 15 of the
Securities Act or who, at the date of this Agreement, is a Trustee of the Fund,
except to the extent that an interest of such character shall have been
determined by a court of appropriate jurisdiction as not against public policy
as expressed in the Securities Act. Unless in the opinion of counsel for the
Fund the matter has been adjudicated by controlling precedent, the Fund, will,
if a claim for such reimbursement is asserted, submit to a court of appropriate
jurisdiction the question of whether or not such interest is against the public
policy as expressed in the Securities Act.
(c) The Distributor agrees to indemnify and hold harmless the Fund and
its Trustees and such officers as shall have signed any Registration Statement
filed with the Commission from and against any and all losses, claims,
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damages, or liabilities, joint or several, to which the Fund or such Trustees or
officers may become subject under the Securities Act, under any other statute,
at common law or otherwise, and will reimburse the Fund or such Trustees or
officers for any legal or other expenses (including the cost of any
investigation and preparation) reasonably incurred by it or them or any of them
in connection with any litigation, whether or not resulting in any liability,
insofar as such losses, claims, damages, liabilities, or litigation arise out
of, or are based upon, any untrue statement or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, which statement or omission was made by the
Fund in reliance upon information furnished in writing to the Fund by the
Distributor for inclusion in any Registration Statement or any Prospectus, or
any amendment thereof or supplement thereto or otherwise for distribution or
publication. The Distributor shall not be liable for amounts paid in settlement
of any such litigation if such settlement was effected without its consent. The
Fund and its Trustees and such officers or defendant(s), in any such litigation,
shall, within thirty (30) days after the complaint shall have been served upon
the Fund or any such Trustee or officer in respect of which indemnity may be
sought from the Distributor or account of its agreement contained in this
paragraph, notify the Distributor in writing of the commencement thereof. The
omission of the Fund or such Trustee or officer so to notify the Distributor of
any such litigation shall relieve the Distributor from any liability which it
may have to the Fund or such Trustee or officer of liability which it may have
to the Fund or such Trustee or officer on account of the indemnity agreement
contained in this paragraph, but shall not relieve the Distributor from any
liability which it may have to the Fund or such Trustee or officer otherwise
than on account of the indemnity agreement contained in this paragraph. In case
any such litigation shall be brought against the Fund or any such Trustee or
officer and timely notice of the commencement thereof shall have been so given
to the Distributor, the Distributor shall be entitled to participate in (and, to
the extent it shall wish, to direct) the defense thereof at its own expense, but
such defense shall be conducted by counsel of good standing and satisfactory to
the Fund. The indemnity agreement of the Distributor contained in this paragraph
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Fund and shall survive any delivery of
shares of the Fund. The Fund agrees to notify the Distributor promptly of the
commencement of any litigation or proceeding against it or any of its officers
or Trustees or against any such controlling person of which it may be advised in
connection with the issue and sale of the Fund's shares.
(d) Notwithstanding any provision contained in this Agreement, no
party hereto and no person or persons in control of any party hereto shall be
protected against any liability to the Fund or its security holders to which
they would otherwise be subject by reason of willful misfeasance, bad faith, or
gross negligence, in the performance of their duties, or by reason of their
reckless disregard of their obligations and duties under this Agreement.
(e) Except as expressly provided in subparagraphs (a) and (c) hereof,
the agreements herein set forth have been made and are made solely for the
benefit of the Fund, the Distributor, and the persons expressly provided for in
subparagraphs (a) and (c), their respective heirs, successor, personal
representatives and assigns, and except as so provided, nothing expressed or
mentioned herein is intended or shall be construed to give any person, firm or
corporation, other than the Fund, the Distributor, and the persons expressly
provided for in subparagraphs (a) and (c), any legal or equitable right, remedy
or claim under or in respect of this Agreement or any representation, warranty
or agreement herein contained. Except as so provided, the terms "heirs,
successors, personal representatives and assigns" shall not include any
purchaser of shares merely because of such purchase.
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10. Duration, Termination and Amendment of this Agreement.
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This Agreement shall become effective on the date it shall be approved
by a vote of the Board of Trustees of the Fund and of a majority of the
disinterested Trustees, and shall, unless terminated as hereinafter provided,
continue in effect for a period of more than one (1) year from such date so long
as such continuance is specifically approved at least annually by a vote of the
Board of Trustees of the Fund and of a majority of the disinterested Trustees or
by vote of a majority of the outstanding voting securities of the Fund. This
Agreement may be terminated by the Fund at any time or by the Distributor on
sixty (60) days' written notice to the Fund. No provisions of this Agreement
may be changed, waived, discharged, or terminated orally, but only by an
instrument in writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought and approved by a majority of
the disinterested Trustees.
11. Notices.
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Any notice of other communication required to be given pursuant to
this Agreement shall be deemed duly given if delivered or mailed by registered
mail, postage prepaid, to the Distributor or to the Fund, each at 000 Xxxxxxx
Xxx, Xxxxxxx Xxxxxxx, Xxxxxx 00000.
12. Governing Law.
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This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware and any action arising out of a breach of this
Agreement shall be brought in the State or federal court in Reno, Nevada.
ATTEST: THE NAVELLIER PERFORMANCE FUNDS
^^^???
----------------------------- By: /s/ Xxxxx Xxxxxx
----------------------------
Xxxxx Xxxxxx, Trustee
By: /s/ Xxxx Xxxxxxx
----------------------------
Xxxx Xxxxxxx, Trustee
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------------
Xxxxxxx Xxxxxxxxx, Trustee
By: /s/ Xxxxxx Xxxxxxx
----------------------------
Xxxxxx Xxxxxxx, Trustee
ATTEST: NAVELLIER SECURITIES CORP.
----------------------------- By: /s/ Xxxxx Xxxxxxxxx
----------------------------
Xxxxx Xxxxxxxxx, President
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